The trouble with spam laws

I attended a recent briefing on Singapore's spam laws. While it was interesting and the speakers tried to get into the nuances of Singapore spam's legislation, the open floor round revealed some of the common problems plaguing spam laws.

First, everyone has a story to tell of his own spam experience...I get so many spam mail a day, or there is some irritating spam which I really hate, or I get some call center pushing some product over the phone. Second, everyone has his own definition of spam--I suspect that senders have one definition, and recipients have another definition, while those who both send and receive spam probably have two definitions! One participant even remarked that spam is anything that he considers spam.

Most of the confusion centers around what qualifies as spam, or in Singapore's context, "Unsolicited Commercial Electronic Messages transmitted in Bulk". Each of the four limbs of this definition--"Unsolicited", "Commercial", "Electronic Message" and "Bulk"--has certain definitions ascribed to the term. In particular, a commercial electronic message is defined as an electronic message, where, having regard to —
(a) the content of the message;
(b) the way in which the message is presented; and
(c) the content that can be located using the links, telephone numbers or contact information (if any) set out in the message.

And, it is concluded that the primary purpose of the message is:
(i) to offer to supply goods or services;
(ii) to advertise or promote goods or services;
(iii) to advertise or promote a supplier, or a prospective supplier, of goods or services;
(iv) to offer to supply land or an interest in land;
(v) to advertise or promote land or an interest in land;
(vi) to advertise or promote a supplier, or a prospective supplier, of land or an interest in land;
(vii) to offer to provide a business opportunity or an investment opportunity;
(viii) to advertise or promote a business opportunity or an investment opportunity;
(ix) to advertise or promote a provider, or a prospective provider, of a business opportunity or an investment opportunity;
(x) to assist or enable a person, by deception, to dishonestly obtain property belonging to another person;
(xi) to assist or enable a person, by deception, to dishonestly obtain a financial advantage from another person; or
(xii) to assist or enable a person to dishonestly obtain a gain from another person.

While some flexibility is given in this definition, it certainly does not extend to all-out subjective interpretation. Laws as they stand need certainty--an uncertain law is a bad law as no one will be sure exactly what is to be done and what is prohibited. In addition, as they say one man's meat is another man's poison--when it comes down to the crunch, whose interpretation should a judge pick?

That is not to say that we should not speak up if we feel that a law should be refined. The consultation period for the Spam Control Act is long over, but there is nothing to stop you from writing to your Member of Parliament with your feedback.

A law may not be perfect, but just because it does not work the way you want it in every instance does not make it defective. In my view, the Spam Control Act does send an important signal that spam, whatever it may be, is not tolerated in Singapore and the fact that we are talking about it, means that this purpose has been achieved.

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Bryan Tan

Called to the Singapore and English Bars, Bryan Tan has practised in two of Singapore’s largest law firms and an international law firm. Bryan led many industry firsts including the first mass e-mail defamation case in the world, Singapore’s first publicised telecoms competition dispute, a pan-Asian co-branded travel portal, the first privately-funded cable landing project in Singapore and the world's first registrar-level domain name dispute. His areas of practice include information technology, telecommunications, biotechnology and bioinformatics, Chinese intellectual property, entertainment law and corporate work. He is also an author of Halsbury's Laws of Malaysia: E-Commerce. He also co-wrote the Singapore chapter of 'Digital Evidence' with Prof. Daniel Seng and is writing Halsbury's Laws of Singapore: E-Commerce.