Lee Chai BoonADVOCATES & SOLICITORS

● Commissioner for Oaths ● Intellectual Property Lawyers ● Corporate & Commercial Lawyers______________________________________________________________________________________

1010thth October 2010 October 2010

Spam ControlSpam Control

Under the Spam Control Act1, any person who sends, causes to be sent or authorises the sending of unsolicited commercial electronic messages in bulk and with a Singapore link 2 shall include a statement to the effect that the recipient of the message may submit an unsubscribe request, and include an electronic mail address (for electronic mail) and a mobile telephone number (for multi-media messaging sent to a mobile telephone number) to which the recipient may submit an unsubscribe request. 2A When the unsubscribe request is submitted, no further unsolicited commercial electronic messages shall be sent after the expiration of 10 business days after the day of submission of the request. 2B

What information is contained within anWhat information is contained within an unsolicited commercial electronicunsolicited commercial electronic message?message?

Unsolicited commercial electronic messages sent in bulk shall also contain:

(a) title in the subject field (where there is one) where the title is not false or misleading as to the content of the message 2C;

(b) header information that is not false or misleading 2D; and

(c) appropriate words to indicate that the message is an advertisement.2E

The foregoing requirements do not apply to an unsolicited electronic commercial message sent by a reasonable mistake of fact. 2F

An electronic message is unsolicited if

the recipient did not request to receive the message or consent to the receipt of the message 3. For this purpose, a recipient shall not be treated as having requested to receive the message or consent to the receipt of the message merely because the electronic address of the recipient was given or published by or on behalf of the recipient 3A. Where a recipient of an electronic message (other than an unsolicited electronic message) submits an unsubscribe request, he shall not be treated as having requested to receive or consented to the receipt of any message sent after the expiration of 10 business days after the day on which the unsubscribe requested is submitted 3B .

Purpose of a commercial electronicPurpose of a commercial electronic messagemessage

A commercial electronic message is defined in the statute as one that has as it primary purpose:

i) to offer to supply goods or services, or land or an interest in land 4;

ii) to advertise or promote goods or services or land or an interest in land or a supplier or prospective supplier thereof 5;

iii) to offer to provide or to advertise or promote a business opportunity or investment opportunity or to advertise or promote a provider or a prospective provider thereof 6 ;

iv) to assist or enable a person, by deception, to dishonestly obtain a financial advantage from another person or obtain property belonging to another person 7;

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LegalLegal update onupdate on the Spamthe Spam

Control ActControl Act (Cap 311A,(Cap 311A, 2008 Ed.)2008 Ed.)

Lee Chai BoonADVOCATES & SOLICITORS

● Commissioner for Oaths ● Intellectual Property Lawyers ● Corporate & Commercial Lawyers______________________________________________________________________________________

v) to assist or enable a person to dishonestly obtain a gain from another person 8 .

How is an electronic message sent?How is an electronic message sent?

An electronic message is a message sent to an electronic address i.e. either an electronic mail address or a mobile telephone number to which an electronic message can be sent 8A. However, a message is not an electronic message if it is sent by way of a voice call made using a telephone service 9. For this purpose, it is immaterial whether the electronic address exists; or whether the message reaches its intended destination 9A.

Electronic Messages sent in bulkElectronic Messages sent in bulk

Electronic messages are deemed to be sent in bulk if a person sends, causes to be sent or authorises the sending of (a) more than 100 electronic messages containing the same or similar subject-matter during a 24-hour period; (b) more than 1,000 electronic messages containing the same or similar subject-matter during a 30-day period; (c) more than 10,000 electronic messages containing the same or similar subject-matter during a one-year period. 10

Provisions under the Spam Control ActProvisions under the Spam Control Act (Cap 311A, 2008 Ed.)(Cap 311A, 2008 Ed.)

The Spam Control Act also provides that no person shall send, cause to be sent or authorise the sending of, an electronic message to electronic addresses generated or obtained through the use of a dictionary attack or address harvesting software. 11

Any person who has suffered loss or damages directly or indirectly from the sender of the unsolicited commercial electronic messages in bulk may commence a civil action against either a) the sender 12; or b) person who aided, abetted, procured, induced or is in any way directly or indirectly knowingly concerned in, or conspiring with others to effect such contravention 13. The same applies to a person who has suffered loss or damages directly or

indirectly from the sending by another of an electronic message to electronic addresses generated or obtained through the use of a dictionary attack or address harvesting software. 14

The court may grant injunction and the mutually exclusive remedies of common law and statutory damages 15. The plaintiff has to elect which of the damages he wishes to pursue. The latter damages are computed at not exceeding $25 for each electronic message sent under the contravention; and not exceeding the aggregate of $1 million, unless the plaintiff proves that his actual loss from such electronic message exceeds $1 million 16. Factors the court considers awarding statutory damages include whether the contravention was wilful, any direct or indirect loss (including pecuniary loss) 17 or damage the plaintiff suffered or is likely to suffer, any benefit accruing to the defendant by reason of the sending of electronic messages; and the need to deter similar contraventions 18. The court may additionally order the defendant to pay to the plaintiff the costs and expenses of and incidental to the proceedings, and any legal costs incurred in respect of the proceedings.19

Codes of practice may, with the approval of the Infocomm Development Authority of Singapore, be issued by internet service providers and telecommunications service providers in connection with the minimum standards of technical measures to effectively control the sending of unsolicited commercial electronic messages. 20 Where any provision of any code of practice is inconsistent with the Spam Control Act, such provision shall not have effect to the extent of such inconsistency. 21

There are no criminal provisions in the Spam Control Act. 22

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1 Spam Control Act (Cap 311A, 2008 Ed). The statute chooses the opt-out approach (allowing the sending of spam provided the recipient exercises an option not to receive them) over the opt-in approach (which restricts the sending of spam without the prior consent of the recipient). The opt-out framework is used in US CAN-SPAM Act (2003). The opt-in approach is used in the European Union (Council Directive 2002/58 of 12 July 2002 of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications

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Lee Chai BoonADVOCATES & SOLICITORS

● Commissioner for Oaths ● Intellectual Property Lawyers ● Corporate & Commercial Lawyers______________________________________________________________________________________

sector [2002] OJL 201/37) and Australia (Australia Spam Act (Act No 129 of 2003) but is seen as less conducive to business.

2 Spam Control Act, s 7(1). See s 7(2) for when a message has a Singapore link. The Act also does not apply to messages sent under the authority of the Government or a statutory board upon the occurrence of an public emergency, in the public interest or in the interests of public security or national defence: s 7(3), First Schedule. During the Second Reading of the Spam Control Bill, it was acknowledged by the then Minister for Information, Communications and the Arts (Dr Lee Boon Yang) that the legislation would have limited effect because 80% of spam comes from a link outside of Singapore (Hansard, Sitting Date: 2007-04-12]  [Vol: 83]  [Col: 568]).

2A Spam Control Act s 11, 2nd Sch. The statement shall be clear and conspicuous, and be at least in the English language: 2nd Sch art 2(4). The electronic mail address, Internet location address, telephone number, facsimile number or postal address (to which the unsubscribe request is to be given) shall (at all times for at least 30 days after the unsolicited commercial message is sent) be legitimately obtained and valid and capable of receiving the recipient’s unsubscribe request as well as a reasonable number of similar unsubscribe requests sent by other recipients, if any: 2nd Sch art 2(5). See also arts 2(6) and (8).

2B Spam Control Act 2nd Sch art 2(7).2C Spam Control Act 2nd Sch art 3(1)(a). There must also

be an accurate and functional electronic mail address or telephone number by which the sender can be readily contacted: art 3(1)(d).

2D Spam Control Act 2nd Sch art 3(1)(c).”Header information” means the source, destination and routing information attached to an electronic message, including, where applicable, the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, the sender of the message.

2E Spam Control Act 2nd Sch art 3(1)(b). Specifically, the letters “<ADV>” with a space before the title in the subject field or if there is no subject field, in the words first appearing in the message, to clearly identify that the message is an advertisement : art 3(1)(b). There

2F Spam Control Act 2nd Sch arts 1, 2(9), 3(2). 3 Spam Control Act s 5(1). If the recipient had requested

or consented to the receipt of the message, the statute does not provide for how the recipient can subsequently unsubscribe. This is because the requirement to cater an unsubscribe facility only attaches to unsolicited commercial electronic messages in the 2nd Sch art 2. This may contrasted with the CAN-SPAM Act (USA) that imposes the unsubscribe requirement on all commercial electronic mail messages (47 USC § 7704(a)(3)(2003)). The Singapore statute does not have a prior business exception i.e. where messages are sent based on an existing business relationship, unlike in other jurisdictions such as Europe (Article 13 of the EU Directive in note 1) and USA (15 USC § 7702(2)(B) and 7702(17)(2003).

3A Spam Control Act s 5(2).3B Spam Control Act s 5(3).4 Spam Control Act s 3(1)(i), (iv).5 Spam Control Act s 3(1)(ii), (iii), (v), (vi).6 Spam Control Act s 3(1)(vii), (viii), (ix).7 Spam Control Act s 3(1)(x), (xi).

8 Spam Control Act s 3(1)(xii).8A Spam Control Act s 2. Effectively, the statute does not

extend to other types of communications such as voice calls, and voice over Internet Protocol (VoIP). See note 9 below. To this extent, Singapore legislation is not technology neutral and the problems arising from this are pointed out in Karthik Ashwin Thiagarajan, The Spam Control Act 2007 Sing JLS [2007] 361 at 367-368.

9 Spam Control Act s 4(1), (3). 9A Spam Control Act s 4(2).10 Spam Control Act s 6(1). This provision is drawn from

the definition of the word ‘multiple’ in the United States Code (18 U.S.C. § 1037 (2003)). In the Singapore context, it has been argued that the requirement of bulk poses real problems as the party suing would be unable to prove that the sender did send such number of messages, since the party suing would not have received them all (Karthik Ashwin Thiagarajan, The Spam Control Act 2007 Sing JLS [2007] 361 at 372-373). The writer highlights that in other countries, the volume of communications is only relevant to provisions connected with criminal offences in connection with electronic mail in the US (18 U.S.C. § 1037 (b) (2003)) and the penalty to be imposed on the spammer in Australia (Australia Spam Act (Act No 129 of 2003) s 25(1)).

11 Spam Control Act s 9. “Dictionary attack” means the method by which the electronic address of a recipient is obtained using an automated means that general possible electronic addresses by combining names, letters, numbers, punctuation marks or symbols into numerous permutations (s 2). “Address harvesting software means software” that is specifically designed or marketed for use for searching the Internet for electronic addresses; and collecting, compiling, capturing or otherwise harvesting those electronic addresses (s 2).

12 Spam Control Act s 13(1)(a).13 Spam Control Act ss 12(1), 13(1)(b). However, a person

does not breach s 12(1) merely because he provides or operates facilities for, online services or network access, or provides services relating to, or provides connections for, the transmission or routing of date: s 12(2).

14 Spam Control Act ss 9, 12, 13.15 Spam Control Act, ss 14(1), (2).16 Spam Control Act, s 14(3).17 Spam Control Act, s 14(5).18 Spam Control Act s 14(4).19 Spam Control Act s 15.20 Spam Control Act s 16. Three major local internet

service providers (Pacific Internet, SingNet and StarHub), the Singapore IT Federation (SITF), the Cosnuemrs Assocaiton of Singapore (CASE), the Singaproe Business Federation (SBF) and the Direct Marketing Association of Singapore (DMAS), altogether led by the Infocomm Development Authority of Singapore, have set up an online Singapore Spam Control Resource Centre at www.spamcontrol.org.sg, containing, inter alia, the ISPs’ Joint Statement on Spam E-mail and the DMAS Guidelines for Using Commercial Electronic Messages, and DMAS Commercial Electronic Messaging Compliance – Email Marketing Checklist as of 1 June 2007.

21 Spam Control Act, s 16(2).22 During the Second Reading of the Spam Control Bill, the

then Minister for Information, Communications and the Arts (Dr Lee Boon Yang) pointed that most spammers generally did not act with malicious intent, and that

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Lee Chai BoonADVOCATES & SOLICITORS

● Commissioner for Oaths ● Intellectual Property Lawyers ● Corporate & Commercial Lawyers______________________________________________________________________________________

spasm sent with a fraudulent or malicious component resulting in a denial of service may be dealt with under the Computer Misuse Act (which criminalises such acts) (Hansard, Sitting Date: 2007-04-12]  [Vol: 83]  [Col: 568 – 614].

by Jeffrey Leeby Jeffrey Lee

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For further enquiries please email:For further enquiries please email:

jeffreylee@leechaiboon.comjeffreylee@leechaiboon.com