Taiwan: Taiwan Government Considering Enacting Spam Legislation

The government of Taiwan is actively looking into enacting legislation in response to the problems associated with spam. The Legislative Yuan has scheduled a series of public hearings on the subject, the Executive Yuan's Council of Economic Planning and Development has commissioned a report on international governmental responses, the government has begun drafting potential legislation and a delegation of Taiwan authorities will attend the OECD conference on spam in Brussels on February 2 – 3, 2004. This update summarizes the issues as they pertain to Taiwan.

The first step in enacting spam legislation is to determine which problems the law will seek to redress. Few would disagree that spam is problematic, but it causes different problems for different entities. For recipients spam is an annoyance, often contains offensive or fraudulent content, consumes bandwidth and computer storage space, takes time to delete, delays delivery of messages and causes legitimate messages to be mistakenly deleted. In addition, businesses suffer from lost productivity, costs of additional equipment and personnel, and possible hostile working environment due to pornographic spam. For Internet service providers (ISPs), spam puts strain on servers, forces expenditures for additional equipment and personnel, and causes consumer complaints. For the marketing industry, spam has irked Internet users and damaged the potential of the Internet as a legitimate marketing avenue. These problems all exist in Taiwan, as in most countries.

Some problems, such as fraud and pornography, relate to the content of spam, but most problems relate to volume. Today, half of all emails are said to be spam, America Online blocks more than 2 billion pieces of spam per day and the volume seems to be growing exponentially. Volume of spam is why individuals and businesses spend so much time and money reviewing, filtering, blocking and deleting messages, and seeking solutions. Volume is the primary cause of annoyance, complaints, lost productivity, and purchases of equipment and filters. Reducing spam volume should therefore be the primary goal of spam legislation.

In Taiwan, most spam is already illegal. Spam containing fraudulent content is illegal under Taiwan's Civil Code and Criminal Code. Spam with false or misleading subject lines or routing information violates the Fair Trade Law, which prohibits false designation of origin. If the routing information falsely indicates that a particular ISP delivered the spam, an action may be filed under Taiwan's Trademark Law, which prohibits use of a mark that is likely to confuse consumers regarding the source of goods or services. When spam is sent from an ISP in violation of that company's terms of use, this constitutes breach of contract. The above is admittedly speculation, because no Taiwan court has yet decided any lawsuit regarding the sending of spam, but it difficult to fathom why those laws would not apply as stated. US courts have entered multi-million dollar judgments based on those theories. Other theories that have worked in the United States - such as nuisance, trespass to chattels, dilution and violation of computer crime acts - either do not exist or probably would not apply to spam in Taiwan.

While spam in Taiwan already violates a number of laws as described above, those types of laws have proven inadequate for reducing spam volume in the United States and they are equally inadequate in Taiwan. Under such laws:

• monetary damages and other remedies are often too small and too difficult to prove;

• judges, internet users and legitimate marketers may be uncertain whether and how the laws apply to spam;

• problems unique to spam are not addressed; and

• spam volume will not be significantly reduced.

Only spam-specific legislation can address all of those issues. The question then arises as to what type of spam legislation is most appropriate.

Because most problems caused by spam relate to the volume, not content, the primary goal of spam legislation should be to reduce the volume. Opt-in legislation will be more effective at reducing spam volume than opt-out. Under opt-out legislation, every spammer may send unlimited spam until each recipient responds and opts out; under most opt-in approaches, spam is prohibited unless there is a prior relationship, and even then the recipient may opt out. In Taiwan, as in other jurisdictions, it is likely that opt-in legislation will be strenuously opposed by self-interested direct marketers, but if the goal is to reduce volume, then opt-in is clearly the way to go.

The standard provisions prohibiting false or misleading subject lines and routing information are advisable, as well as a required opt-out function on all unsolicited commercial emails, regardless of whether the sender and recipient have a pre-existing relationship. Requiring a commercial (ADV) or sexual (ADLT) label is a good idea, although it would be more helpful if such labels were consistent globally. It should be unlawful to send emails to addresses generated by automated means or to sell or distribute software designed, intended or primarily useful for that purpose.

A private right of action should exist not just for ISPs and government authorities, but for all who receive illegal spam. Some claim that extending that right to individuals may result in the filing of frivolous lawsuits, but that risk is present in all litigation and those who are harmed by illegal spam should have a right to recover compensation and to assist with enforcement of the law. As in the Controlling the Assault of Non-Solicited Pornography and Marketing Act, which just went into effect in the US, a right of enforcement should exist against those who knowingly permit others to sell their goods or services through unlawful spam. Such merchants, who are often the driving force behind unlawful spam, can usually be located for service of process.

The law should authorize statutory damages of at least US$100 per unlawful message and US$100,000 per day, possibly significantly more, plus attorneys' fees. For serious or repeated violations, penal provisions should be applicable. On the subject of enforcement, a proposed reward system for tips leading to the successful prosecution of spammers is also a good idea, due to the difficulty tracing and identifying spammers. Finally, the law should provide for a transition period, during which companies may request consent from customers concerning future unsolicited commercial emails.

One should not expect that any legislation will eliminate the problems of spam, but a law such as the above would be vastly preferable to no legislation or to opt-out legislation, which makes spamming legal. As part of a comprehensive plan incorporating technology, public awareness, industry self-regulation and international cooperation, such legislation could be a powerful tool in the fight against spam. This is essentially the recommendation that will be made to the Taiwanese government.