Watchdog outs SA’S peskiest spammers
‘Hall of Shame’ cleared of being defamatory
LMOST daily I get e-mails from organisations inviting me to business workshops. “Dear Executive”, they begin, inviting my ever-so-important self to learn things every journalist needs to know, such as “management reporting for accountants” and “financial skills for purchasing and procurement”.
Despite me going through the “unsubscribe” process, the e-mails keep coming, and straight into Trash they go.
So it was gratifying to discover that the Internet Service Providers’ Association (Ispa) has won a major court victory over its right to “out” the worst spammers on its Hall of Shame.
The Johannesburg High Court has upheld its right to include Ketler Investments – trading as Ketler Presentations – on that list.
Also on the list of 50 of South Africa’s worst spammers are those organisations involved in sending bulk spam, as well as those that sell internet addresses.
Ketler’s legal action was based on its claim that the listing was defamatory. Ispa argued that it was not defamatory, and even if it was, it was justified.
Mr Justice Brian Spilg accepted that Ketler’s listing on the Hall of Shame was likely to affect its business reputation negatively, but argued that as a self-regulating representative body within the framework of the Electronic Communications and Transactions Act, and with extended obligations under the Consumer Protection Act, Ispa acted legally because it was able to demonstrate that “the defamatory matter was true and that its publication was in the public interest”.
The judge rejected Ketler’s argument that its listing on the Hall of Shame infringed its constitutional right to freedom of expression, because it had failed to demonstrate how Ispa’s actions had affected its right to advertise.
“The judgment is a vindication of Ispa’s approach from a legal point of view, but it also shows that this approach is proving effective,” said Graham Beneke, chair of Ispa’s anti-spam working group, in the organisation’s statement.
“Consumers need to be protected from unscrupulous marketers… They are empowered and increasingly discerning: Flooding them with spam will not make them into customers – rather the reverse.”
Ain’t that the truth.
So what is unsolicited bulk e-mail? According to Ispa, it’s spam unless there is already a prior relationship between the parties and the subject matter of the email concerns that relationship, or unless the receiving party has explicitly consented to receive the communication.
Sadly, such spam has become a way of life, despite the fact that the Consumer Protection Act protects us from it.
“The right of every person to privacy includes the right to refuse to accept unsolicited direct marketing communication; demand that the sender desist from sending any further communication, or pre-emptively block, any direct marketing approach or communication to that person.”
Ah, the “pre-emptive block”. The National Consumer Commission was supposed to establish an authoritative, legally enforceable Do Not Contact registry to protect us from spam, if that’s what we want, but two and a half years down the line, that has not yet happened.
And unwanted direct marketing isn’t restricted to e-mail, of course – it comes at us through our phones, too – both landline and cellular.
Interestingly, consumers may not be charged a fee for asking a spammer to stop, but by being forced to send a “Stop” SMS – at a cost of at least 50c – that’s just what happens.
More on that issue in a future column.
The Marketing Association of SA provides consumers with some protection against those annoying, personal commercial intrusions – it runs its own optout register, and the names on this register are made available to paid-up members on a monthly basis.
If you register your name on that (go to www.nationaloptout.co.za), most of your unwanted “spam” will stop. But non-association members will continue to harass you.
Of course, you have the right to tell any company to stop pestering you with any form of direct marketing, at any time. The bad news is they may just carry on regardless. And many do.
Ispa points out that replying to an unsubscribe instruction in the body of an unsolicited e-mail often merely serves to confirm that your email address is active and could even result in more spam from that source.
Rather e-mail the sender directly, asking for the mails to stop. If that has no effect, lodge a complaint with Ispa at queries@ispa.org.za
To check out the organisation’s Hall of Shame, go to www.ispa.org.za
It contains the names of well-known South African spammers, including Dynamic Seminars, New Heights 1268 / Jaco Derksen, and SA Webs.
AConsumers may not be charged for asking a spammer to stop