Colombia discusses law bill regulating use of not requested commercial e-mail (spam)

Colombian Congress is discussing a law bill that seeks to regulate non-requested commercial electronic mails (SPAM).

The bill contemplates the following basic objectives:

To reduce SPAM significantly;

To preserve users? control over the reception, filter and elimination of e-mail messages;

To provide announcers seeking a responsible use of e-mail with clear legal provisions;

To preserve existing mechanisms used by service suppliers for fighting SPAM.

Antispam and computer crime legislation is rather new in Latin America. Indeed, the first initiatives in the field of information technologies referred to legislation concerning electronic signatures and on-line commerce. In a subsequent stage, Latin American countries identified the need to offer legal mechanisms for facing the problem of technological insecurity (e.g. hacking, cracking, child pornography, etc.).

Lately, these countries have stopped seeing the problem as a simple inconvenient, and have began to treat it for what it is: a true threat to users? security and to the viability of the Internet and of e-commerce.

The bill proposes the following among other things:

Any commercial, promotional or advertising e-mail must contain:

a.- The word "ADVERTISING" or the sentence "ADVERTISING FOR ADULTS" if this would be the case.

b.- Name or corporate name, complete domicile and valid e-mail address of the individual or legal person issuing the message.

c.- A valid and active e-mail address or other Internet-based mechanism allowing the receiver to express his desire to not receive further messages.

Non-requested commercial e-mails shall be deemed unlawful in the following cases:

a.- When they do not meet any one of the requirements listed above.

b.- When they contain a false name or false information impeding or making difficult for the receiver to identify, locate or send an answer to the person that issued the e-mail.

c.? When they are sent through the Internet address or the domain name of a third party without the consent of the same.

d.- When the field ?matter? contains false or misleading information, which does not coincide with the contents of the message, or

e.- When they are sent 10 calendar days after the addressee may have sent an order to suspend delivery of advertising to his e-mail, knowing that addressee had sent said order.

Liability

The Superintendency of Industry and Commerce may fine any individual or legal person sending unlawful messages with up to two thousand (2,000) monthly legal minimum salaries, depending on the seriousness of the offense.

Exemption from liability

No actions shall be taken against e-mail or Internet service suppliers who just transmit the e-mail through their computer or telecommunication networks based on information about the receiver that has been provided by a service user or a third party.

Law shall acknowledge the validity of agreements or codes of conduct established by e-mail and Internet service suppliers, marketing entities and others using commercial e-mail, or the associations representing them, in which conduct policies or guidelines coherent with this law may have been specified. Once acknowledged, a seal or any other sign will be affixed on said agreements or codes indicating that the policies are backed up by the State.

The origin of this law bill is jurisdictional, given that in year 2003, the first action for writ of mandamus seeking to stop non-requested mass e-mails was filed.

The action was filed by a Colombian entrepreneur, tired of receiving non-requested mails that made him waste time, that saturated his computer systems and violated his privacy. The defendant was a company offering its services under the name VirtualCard and engaged in marketing activities carried out through electronic means.

The judge that heard the case ruled that massive delivery of non-requested mails was a violation of the right of privacy and Habeas data of the petitioner, and ordered the company to refrain from sending new mails and delete the plaintiff from its database.

In addition to the protection of privacy, the case presented an aspect that made it particularly interesting: the complaint brief, its exhibits and the power of attorney were filed using an electronic means: they were filed by e-mail.

The power of attorney was sent after the Notary Public No. 19 of Bogotá certified it. The judge admitted the action to process and served it upon the parties also using electronic means. The parties answered the same and the ruling was served upon by e-mail too.

The file does not contain one single sheet of paper and the parties did not have to move from their places one single time. This was indeed outstanding, since this was the first time that Colombian ordinary justice handled a proceeding through electronic means, a first step towards what could be called e-justice.