Spam slapdown a win for consumers
Ruling sets precedent in action against unsolicited e-mail
NAMING and shaming: I am a big fan. That is not too surprising, considering that it is pretty much synonymous with what I do for a living.
But I am not alone. The public vilification of offenders is something most “victims” savour. It causes the culprit embarrassment, reputational damage and, one hopes, loss of business.
It is a wonderful comeuppance for scoundrels and allows consumers to vote with their feet — and wallets.
That is why a recent judgment in the High Court in Johannesburg giving an industry watchdog the right to out serial e-mail spammers is such an important — and satisfying — consumer victory.
Businessman Trevor Ketler took the Internet Service Providers’ Association (the self-regulating industry body for companies providing internet services) to court for placing his company, Ketler Presentations, in its Hall of Shame.
The Ispa Hall of Shame, launched in 2008, lists 50 local individuals and companies that spam consumers.
The association defines all unsolicited bulk e-mail as spam unless there is already a prior relationship between the parties and the subject matter of the e-mail concerns that relationship, or the consumer has explicitly consented to receive the communication.
The Hall of Shame also lists 31 individuals and companies that sell e-mail addresses to third parties without being able, or willing, to say where they got them.
The selling of such lists, even legitimately sourced ones, will be illegal when President Jacob Zuma gets around to signing into law the Protection of Personal Information Bill.
Under this significant new privacy legislation, it will also be illegal to send any marketing information without direct opt-in from consumers. And when the National Consumer Commission sees its way clear to establishing the long-promised national opt-out registry, protection against spamming will be even stronger.
Back to Ketler versus Ispa. The training company, which provides courses throughout South Africa on subjects such as leadership, project management and presentation skills, asked the courts last year to order Ispa to remove its name from the list of offenders.
Ispa first named Ketler in 2009 after complaints from its members said that he had sent bulk e-mail newsletters with promotional material to consumers who did not want to receive it. Several service providers had been used to transmit the spam, some of which were Ispa members.
After Ketler signed an undertaking to get its house in order, the company was taken off the list. But when it continued to offend, Ispa returned it to the Hall of Shame a year later. Ketler then sued Ispa, arguing that the listing was defamatory and unconstitutional.
When Ketler failed to appear in court for the hearing in June last year, Ispa took the opportunity to set a precedent, asking the court to hear its case anyway and issue a ruling.
Judge Brian Spilg obliged, eventually delivering a written judgment in September that secured a victory for Ispa and consumers alike.
He said the defamatory listing might negatively affect Ketler’s business, but that the listing was accurate and in the public interest.
The judge acknowledged that Ketler might find it difficult to find an internet service provider willing to distribute his e-mails.
“There is a distinct innuendo to consumers utilising the internet that the applicant is acting in at least a morally offensive manner in the eyes of an industry oversight body by exploiting the accessibility of the internet at the consumer’s expense,” he said.
In addition to sending e-mails without explicit consent, the judge noted, Ketler had not provided proper details of the source of his e-mail addresses — a breach of the Electronic Communications and Transactions Act — and had failed to cancel subscriptions when requested to do so.
“Accordingly, [Ispa] is able to show that [Ketler’s] conduct as a spammer is ‘shameful’ or otherwise justifies having its estimation lowered in the minds of right-thinking people,” he said.
The ruling gives the green light to Ispa to continue its name-and-shame campaign without fear of a legal backlash from culprits. It is a triumph not lost on Graham Beneke, chairman of Ispa’s anti-spam working group.
“It’s the first time we’ve had any precedent related to the issue of spam,” said Beneke. “It’s a reasoned judgment that now provides industry and consumers with guidance and clarity.”
And it is much-needed clarity. More than 80% of all internet traffic is spam, although anti-spam software on most servers manages to block most of it. The junk mail that slips through — which consumers see — is just 10% of what is being pushed through mail servers.
“Consumers need to be protected from unscrupulous marketers . . . Today’s consumers are empowered and increasingly discerning, and flooding them with spam will not turn them into customers — rather the reverse,” Beneke said.
As a repeat offender, Ketler will remain listed for three years from the date of the last complaint from a member. The most recent complaint was on October 19 after he lost the case.
Ketler did not respond to my e-mails or calls.
Internet service providers are able to use the list, which details culprits’ domains and addresses, to filter who they do business with. So too, should consumers. And when new spammers surface, consumers should report them directly to their internet service provider. Ispa will do the rest.
None of this means, however, that unsolicited e-mail spam cannot — and will not — find another way in. Unscrupulous businesses will continue to evade policing efforts by locating their servers internationally and using foreign service providers.
But in the war against local junk e-mail, at least, there is no doubt that the ante has been upped.
To access the Hall of Shame, go to ispa.org.za
Tune in to Power FM’s Power Breakfast tomorrow at 8.50am to hear more from Megan
His conduct as a spammer justifies having his estimation lowered in the minds of right-thinking people