Subsequent to official warnings given in 2005, OPTA, the telecoms watchdog in the Netherlands, has issued a fine of €250000 against Dutch national Reinier Schenkhuizen whom they label a “persistent spammer” . The fine comprises €150000 for sending the mails and €100000 for not including a link to unsubscribe from the mailings and will be increased by€5000 for every day he continues to send unsolicited email, up to a maximum fine of €100000. OPTA accuse him of sending over 21 million spam messages, Mr.Schenkhuizen denies responsibility.
The mails in question were sent through the online mass-mailing portal ADVERTERENisGRATIS which is a part of SerincoBenelux. Mr Schenkhuizen says “If users are commiting fraud, then that is clearly not my responsibility”. He goes on to state“If instead of ten, a hundred or two hundred customers, 100,000 email addresses are used, that do not meet the telecoms legislation, addresses which are not legal, then you can not prohibit that. That is the responsibility of the users themselves“. The important question in this case, at least as far as Mr. Schenkhuizen is concerend, is “as a software product is brought to the market, are you as a designer responsible for what users do with it?”
OPTA for their part have Mr. Schenkhuizen clearly in their sights as the originator of the mails and also as the provider of the email addresses “and that is the main resaon for him to be regarded as the sender“. According to the ADVERTERENisGRATIS website, they have also just opened up operations in Spain, it’ll be interestign to see what Spanish users and authorities make of the service.
OPTA appear to be be of the more stringent authorities in Europe when it comes to issuing fines for spam related activities, in 2007 they levied a fine of €75000 against a spammer charged with sending over 9 billion unsolicited emails promoting “erection enhancement pills, pornographic web sites, sex products and such“.
Despite being based on a common EU directive, anti-spam laws across the European Union vary wildly in their stringency and effectiveness. The European directive leaves it up to each state as to how they wish to enforce the legislation, as long as it is “effective”
Austria, Belgium, Denmark, Finland, Germany, Greece, Hungary, Italy, Norway, Poland, Slovenia & Spain have enacted so-called full “opt-in” legislation where the sender must have the explicit permission of the recipient to send mail, covering both consumer and business email addresses. This system is also under consideration in the Netherlands, France and Sweden.
As a small illustration of the variance in sanctions across Europe, in Italy convicted Spammers can face fines of up to €90000 and between 6 months and three years in prison. In the UK most successful prosecutions have been brought through the Small Claims Court, where fines are limited to the actual damage than can be proven to have been occasioned. Even in the event that criminal proceedings occur, they are subject to a maximum fine of £5000 under the Privacy and Electronic Communications Regulations.
Compare that to the million dollar punitive damages that can be imposed in the US under the CAN-SPAM Act, or the 6 figure sums that ICSTIS, the UK premium phone line regulator, can impose when operators breach their rules and it is clear that many European sanctions lack the necessary bite to dissuade “persistent Spammers“.
All the above of course doesn’t even delve into the technical aspects of proving origin of the multiple billions of Spam messages that are sent through botnets every year. Try searching the internet for “spammer fined” and see how few unique results come back…