Spam legislation in Russia

Transcription

1 Spam legislation in Russia Report by Eugene Altovsky Coordinator of AntiSpam Project UNESCO IFAP Russia June 2006 AntiSpam Project website Table of contents An approach to the spam phenomenon 2 Current legislation 3 Current experience of spam enforcement 5 Forthcoming legislation 6 Proposed legislation 7 Links , IPOS UNESCO IFAP (Russia) This report within the public domain and may be freely distributed without special permission from copyright holders. 1

2 An approach to the spam phenomenon When considering spam and other kind of misuse or abuse of ICT in particular, fraudulent practices, phishing, etc, it is often widely assumed that such issues are exclusively Internetbased. When examining a problem such as spam, which is often treated as solely Internetrelated, we find that spam as a phenomenon - was actually invented long before the rise of the Internet. One of the basic human rights is the right to freedom of expression or speech. Article 19 of the United Nations Universal Declaration of Human Rights proclaims that: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. This proclamation is reflected in the constitutions of most democratic countries to some degree. However, the right to freedom of expression, free speech, production and distribution of information is not absolute and may be restricted in an effort to respect privacy, confidentiality, public safety, state security, etc. Just as freedom of expression does not provide the right to offend someone, with impunity, it also doesn t stipulate any duty to receive correspondence (in particular ) Taking this into account, we could conclude that spam is nothing more than misuse of freedom of speech. The Internet has merely elevated the problem of spam to a new level due to its cross-border nature. The same may be said for other Internet-related problems such as online fraud, phishing, IP piracy, misuse of personal data, etc. These issues were around long before the rise of the Internet, now we simply face Internet-incarnated versions of them. 2

3 Current legislation According to Part 4 Clause 29 of the Constitution of the Russian Federation: everyone has the right to search, receive, transmit, make and distribute freely information in any lawful way. However, this right does not mean automatically it is somebody s to receive the information. Item 1 of Clause 62 of the Federal Law No 126-FZ On Communication directly specifies that: the user of the services of communication has the right to transmit, receive, or to refuse reception of the message. However, the responsibility for deprivation of the addressee of the message an opportunity to refuse its receipt, is not stipulated. Owing to this blank in the Russian legislation, spammers feel unpunished. However, absence of legislative norms to direct conduct does not mean, that activity of the spammers is lawful. According to Item 1 of Clause 10 of the Civil Code of the Russian Federation actions of citizens and the legal persons, carried out exclusively with intention to harm other person, and also abusing the right in other forms are not acceptable. Here the Civil Code connects limits of realization of the civil rights with the valuable criteria of having moral-legal character: to not use the right to harm to another and to operate reasonably and honesty. Thus, imposition of information and distribution of information against will of the addressees, in such a way, that addressees cannot prevent receipt of this information and are forced to incur losses in connection with its receipt, is from the legal point of view abuse of the constitutional law on freedom and distribution of information. The relations arising during and as a result spammers activity, do not fall outside the limits of private law. In case of absence of legislative norm of direct action, similar relations are regulated by the customs of a business turnover defined by Clause 5 of the Civil Code of the Russian Federation as developed and widely applied in any area of business activity a rule of the behavior which has been not stipulated by the legislation. According to Clause 309 of the Civil Code, obligations [between the parties] should be executed properly according to conditions of the obligation and requirements of the law, other legal acts, and at absence of such conditions and requirements - according to the values of business. The informal association uniting representatives of the Internet-community of a Russianspeaking part of the Internet - the Open Forum of the Internet-Service-Providers, - has developed a code of behavior for Internet users, having drawn blanks in Russian legislation. The code, named OFISP-008, is a document based on the rules of business. According to OFISP-008, bulk distribution of messages by means of and other means of personal information interchange differently as on obvious and unambiguously expressed initiative of addressees is inadmissible. Thus, breaking OFISP-008 the spammers break the civil legislation of the Russian Federation, which provides the Internet-providers with the basis to terminate a contract with the spammers on granting its services to access the Internet. 3

4 Recipients of a spam can launch a civil court proceeding, requiring the refund of expenses connected with receipt of spam, and mental cruelty. For cases were spammers have caused, for example, failure of a mail server to work, the sum of such claim can be rather significant, having been calculated on the basis of loss of earnings/profit for a business. From an administrative law perspective, most spam is seen as actually breaking Federal Law No 108-FZ On Advertising. According to its Article 5 Advertising must be recognizable without any special knowledge or without the application of any technical means precisely as advertising directly at the moment of its presentation regardless of the form or advertising vehicle used. It is a fact that most of the spam messages Subject headers do not correspond with the actual content of the message. According to its Article 7 False advertising shall be that which contains information not corresponding to reality with regard to... information on the advertiser himself. False advertising shall not be permissible. Again most spam messages contain false From header which don t corresponds with the name or address of real sender or advertiser. Often spammers break other clauses in Federal Law On Advertising, which concerns ethical aspects of advertising, formal requirements for advertising content, etc. According to Clause 14.3 of the Administrative Code of the Russian Federation, breaking the legislation on advertising is subject to an administrative penalty which range from equivalent of USD 75 to USD

5 Current experience of spam enforcement There is only one known case of OFISP (in previous OFISP-005 edition) enforcement - Obuhov vs. MTU-Intel in The summary of the case is follows: ISP MTU-Intel Co., Ltd. unilaterally canceled service agreement with Mr. Obuhov, who was exposed for spam distribution. Mr. Obuhov had filed civil suit against MTU-Intel demanding it restore its agreement/contract. MTU-Intel referred to OFISP as the reason for its decision and won the case. The only known criminal case against spammer was completed in Ural GSM vs. Androsov. Mr. Androsov had sent about offensive SMS messages through hacked SMS gate belonging to Ural GSM Co., Ltd. Mr. Androsov was fined an equivalent of USD 100 and given a suspended sentenced of 1 year in prison. As far as is known the last part of sentence has remained suspended. The sentence was based on Article 273 of Criminal Code concerning creation, use or dissemination of malware. Interestingly, Mr. Androsov wasn t prosecuted for spam activity per se, but for spam related activity - a Perl script used in an inappropriate manner. There are currently three inquires regarding spammers activity in relation to Federal Law On Advertising, with a total of 8 cases sent to Federal Antimonopoly Service (former Ministry for Antimonopoly Policy), authorized for enforcement of this Federal Law in 2004, 2005 and 2006 by Anti-Spam Project. All three inquires were only formal replied, the last inquiry, concerning the spam with advertising of personal and commercially sensitive databases and imitations of Swiss-made watches was forwarded to Interior Ministry and still under investigation. 5

6 Forthcoming legislation The new edition of Federal Law No 38-FZ from March 13, 2006 On Advertising will come into force on July 1, Article 18 of this edition: Advertisements Distributed via Electric Communication Networks and by Mail, proclaims the following (unofficial translation): The distribution of advertisements via electric communication networks, including telephone, facsimile, roving radio telephone communication, is only admissible if the subscriber or addressee has granted his consent to receive advertisements. In this case an advertisement shall be deemed distributed without the consent of the subscriber or addressee unless the distributor of the advertisement proves that such consent has been obtained. The distributor of an advertisement shall immediately stop distributing the advertisement addressed to the person which has requested that it be stopped. This Article has a number of weaknesses, ranging from using non-judicial vocabulary to denial the presumption of innocence principle. Three major flaws are: 1. There is no relevant Article in the Administrative Code which prosecutes the breaking of Article There is no mechanism for investigating spam cases in place. It is obvious that spam cases can only be investigated within an administrative or criminal investigation, but authorized enforcer for the Federal Law On Advertising isn t authorized to institute proceedings. Further the investigation of spam cases requires the right to work with personal data and limit the privacy of correspondence which only Interior Ministry and few special service agencies, like Federal Security Service (former KGB) have. 3. Last but not least the advertising term in accordance with new edition of the Federal Law On Advertising has a number of exceptions: political proclamations, private announcements, market research reports, and even reference to goods... which is organically integrated in a work of science, literature or art and which per se is not information of advertising nature. All such information will not be treated as advertising and so can still be distributed through spam. Furthermore, the Article 437 of Civil Code states, that: 1. The advertisements and the other proposals, addressed to an indefinite circle of persons, shall be regarded as an invitation to make offers, unless directly pointed out otherwise in the proposal. 2. The proposal, containing all the essential terms of the contract, in which is seen the will of the person, who is making the proposal, to conclude the contract on the terms, indicated in the proposal, with any responding person, shall be recognized as an offer (the public offer). In other words it differentiates between advertising itself and a public offer which in fact only slightly differs and in fact looks similar to most people. This fact lets spammers remain lawful even after July 1, 2006 just by adding a few words to their messages. 6

7 Proposed legislation The draft amendments to Federal Law On Communication and Administrative Code proceeds on the assumption that spam is not a kind of information, but a means of information distribution whereby the sender does not exactly know who is the recipient(s) is (are). The main amendment is as follows: Creation and transmission of electronic or postal messages for an unidentified list of users of communication services is inadmissible. The abovementioned amendments were developed within AntiSpam Project. 7

8 Links AntiSpam Project site SafeNet educational portal on cybersecurity issues (under construction) Legal status of a spam in Russia OECD Report on non-oecd Countries' Spam Legislation ITU Anti-Spam Laws and Authorities Portal - Russia EuroCAUCE Survey - Russia Dr. Victor Naumov on Legal aspects of spam in Russia (mainly obsolete) 8