India: Throwing A ‘Spam’-Mer In The Works

Last Updated: 20 February 2004
Article by Azmul Haque and Ajay Shaw


Originally published in the Corporate Counsel section of the Economic Times (India’s leading business daily) on February 15, 2004


We’ve all got a lot of it, without ever asking for it, and despite the fact that its free, we don’t want any more of it. We’re talking about ‘spam’.

‘Spam’ may be defined as unsolicited bulk e-mail sent for commercial and marketing purposes. Almost anyone who has a web-based email account would have received innumerable amounts of spam mail, which attempt to sell anything from low mortgage rates to pornography to miraculous cures for weight loss.


Spam is undesirable for several reasons: Spam mails are useless - containing information that we would usually never need, and products that we would even less likely purchase. Spam mails are also a headache, as we would require deleting them to ensure that our email accounts do not exceed the maximum permitted storage size.

Additionally, spamming results in ISPs facing slower server speeds and degraded response times from the ISP's mail exchanger service. Last but not the least, objectionable spam mail is sometimes well disguised and often so worded in the header that it looks like an ordinary mail – thereby causing quite a bit of embarrassment when pictures of unknown semi-clad women pop up on our computer screens!

An OECD Report estimates that the "worldwide cost to Internet subscribers of spam is in the vicinity of $ 12.5 billion a year". Not surprisingly, several countries have enacted laws to regulate, and in some cases prohibit, this technological ‘scourge’.


A. United States

Though several states in the United States already have their own legislations regulating spam, the only enacted federal legislation in the United States in force presently is the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003", popularly known as the CAN-SPAM Act.

The CAN-SPAM Act, 2003

The Preamble to the Act clearly sets out its objectives:

"To regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet."

The Act requires unsolicited commercial e-mail messages to be labeled (though no standard method is prescribed) and to contain opt-out instructions for the recipient, as well as the sender's physical address. The Act also prohibits the use of deceptive subject lines and false headers in such messages. Interestingly, the Federal Trade Commission, the regulatory agency with wide-ranging powers to create and enforce a wide variety of rules under various consumer protection legislations, is authorized to establish a "do-not-email" registry, but not compulsorily required to make such a registry. The CAN-SPAM Act takes effect on January 1, 2004.

State Legislations

Several states in the United States have their own legislations such as Washington, which had its own law regulating Spam as early as 1998. Unlike the federal law, which only regulates spam, the Washington legislation prohibits commercial e-mail that has false or otherwise misleading information in the subject line. Further, it also bans commercial e-mail that contains an invalid reply address or disguises the transmission path. From the perspective of enforcement, the law permits message recipients and ISP's as well as the attorney general's office to file civil suits for compensation and punitive damages.

B. United Kingdom

The United Kingdom has been relatively less pro-active compared to other jurisdictions, which have implemented legislations to regulate spam much earlier.

Until recently, the only legislation in force was the Consumer Protection (Distance Selling) Regulations 2000, which implements the EU Directive 97/7/EC on the Protection of Consumers in respect of Distance Contracts. Under the EU Directive, Member States have three options while legislating: (a) provide for an opt-in clause, (b) provide for an opt-out clause and (c) provide for self-regulation by the industry.

EC Directive on Privacy and Electronic Communications (2002/58/EC)

Subsequently the above principles have been extended, in the light of new technology, to apply to unsolicited mail, phone and the Internet in the form of implementation of the EC Directive on Privacy and Electronic Communications (2002/58/EC). The said regulations are in force since 11 December 2003 and the new rules apply on a "technology neutral" basis.

Under UK law, any use of email, e-faxes and SMS messages for direct marketing will require the prior consent of subscribers, who can ‘opt-in’ for such services. There are limited exceptions to this requirement - such as if the electronic contact details had been obtained in the course of the sale or negotiations for sale of product or service to the target customer.

Another requirement under the new Regulations is that all e-marketing messages must include a valid address to which the recipient may address an unsubscribe request.


There is no law presently in India, which provides for, or has been enacted to deal with the issue of spam.

The Information Technology Act, 2000 (the "IT Act") does not contain any provision regulating the act of ‘spamming’. However, the IT Act does regulate ‘obscenity’, which covers publishing, transmitting or causing to be published in electronic form, any material which is lascivious, or appeals to the prurient interest, etc. Considering that a large proportion of ‘spam e-mail’ pertains to pornography, is it possible that a ‘spammer’ may be brought under such a provision?

In any event, the wording of Section 67 is ambiguous, and it may be also possible that an ISP may be considered liable, as it may be said to be ‘transmitting’ such electronic material.

In the absence of any statutory protection to check spam mails on Internet, it may be necessary to rely on the traditional tort law principles of ‘trespass to goods’ as well as the ‘law of nuisance’ to address the challenges posed by spammers.

The term ‘nuisance’ is derived from the French word ‘nuire’, to do hurt, or to annoy, and an action for nuisance arises in respect of an act producing material injury to property or an act producing personal discomfort.

‘Trespass to goods’ occurs when the unlawful disturbance of possession of the goods, whether actual or constructive held by the plaintiffs, by an act of the defendants causing damage to the goods.

It would seem likely that Indian courts would use existing laws of torts, to deal with the issue of spam, until separate legislation specifically regulating spam is enacted.


In the first-ever judicial order in India on the issue of spam, the Delhi High Court has restrained a party from "causing transmission of unsolicited bulk electronic mail" to any user of the services of an Internet Services Provider (ISP).

In the case of Tata Sons v. Amait Kumar Gupta, Justice R.C. Chopra has passed an interim injunction against McCoy Infosystems Pvt Ltd and its proprietors and agents from indulging in the activity of jamming the VSNL Internet server.

A suit was instituted by Tata Sons, on behalf of VSNL, wherein it was alleged that through the Unsolicited Bulk Commercial E-mail (UBCE), McCoy Infosystems Pvt Ltd and the other defendants were intentionally "tresspassing" on VSNL's property despite being black-listed for habitual transmission of UBCE.

The plaintiffs argued that the transmission of UBCE by McCoy Infosystems Pvt Ltd into the VSNL systems was directly responsible for denying VSNL access to use of its own property. As such, the defendants were causing an electronic nuisance to VSNL and breaching the terms and conditions of the services provided by it.

It may be noted that the said interim order is in the nature of a temporary restraint, and it may be some time until the entire court proceedings are completed, which include submissions by all the parties and a final hearing, before the final judgement is issued.

Nevertheless, the order of the Delhi High Court is significant – firstly, it recognizes that spamming is a problem and needs regulation, and secondly, in the absence of a specific law, judicial recognition through interpretation of other laws may be necessary.

It is interesting to note that VSNL had obtained the said order on the basis of arguments addressed under the traditional tort law principles of trespass to goods as well as the law of nuisance.


Though the current Indian legal regime may be ambiguous and indefinite about the regulation of spam, it is possible that existing Indian laws could be creatively used to provide some relief against the persons engaging in spamming activity.

Nevertheless, the enactment of clearly defined laws and the establishment of effective enforcement machinery may be imperative in the longer run. Until then, the only effective remedy to fight the onslaught of spam may be technology itself!

The views expressed in this article are those of the authors and do not represent the views of the firm. This article does not purport to be professional advice, nor a complete or comprehensive study on the subject. It is recommended that professional advice be sought before taking any action pursuant to any matter contained in this article.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions