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Spam Laws Worldwide: South Africa
Posted by Rebecca Bolin on Sunday, February 22 @ 19:35:04 EST Spam
Something went terribly wrong with South Africa's spam laws.

Its landmark legislation, carefully drafted in 2002, is somehow doing nothing at all to stop spam and causing more and more unexpected headaches. It seems South Africa might be better off with no spam laws at all.

After round tables, papers, drafts, and debates, South Africa passed the Electronic Communications and Transactions Act in summer 2002. This law was designed to handle all problems with electronic data, including government Internet-based services, cryptography, digital signatures, public Internet access, and much more. (A summary, including other requirements, is here). The ECT Act regulates spam in Chapter VII, § 45. Unsolicited commercial messages are not illegal, but they must contain an opt-out and disclose where they obtained address information came from on request. If a "customer" opts out, a "sender" must not send any further messages, subject to a fine or jail time less than twelve months.

Since this law's introduction, it seems little has actually been done to stop spammers. South Africa has publicized some convictions for fraudulent spam using government officials' names to gather money in "Nigerian" styled schemes. These cases were ongoing for four years, and it is not even clear that the ECT Act was needed to convict these spammers since their fraud was so obviously banned under common law. Another large victory for South Africa was catching two notorious hackers that had hacked into bank accounts. The ECT Act is more relevant to this kind of crime, though not the spam regulations, obviously.

So where are the spammers this law should have stopped?

It seems the ECT Act is fraught with problems. Though it regulates "unsolicited commercial messages," only "messages" has a clear definition. The receiver protected is a "consumer," also undefined, and the requirements of a satisfactory opt-out are unclear. Perhaps worst of all is the lack of clarity of "sender," which could hold ISPs liable for what is sent. There has been no pilot litigation probably due to this amazing level of vagueness and the expense of bringing spammers to trial. Other parts of the ECT Act are more clear. Forged headers and DoS attacks are much more clearly prohibited, but there has been no pilot litigation in this area either.

As if not catching spammers it intended weren't bad enough, it seems the ECT Act also restricts filtering. Some suggest that the laws protecting data relays only apply at an ISP level. ISP silent filtering of e-mail is treated like censorship, violating the Bill of Rights and the ECT Act. Even if this was the intent of the law, as written it could also stop filtering by businesses. Some lawyers claim filtering another person�s mail at any level violates the Act. Mydoom hit South Africa hard, and its only hope was business filters and educated users. Even with this much filtering, many servers could not handle e-mail with attachments, devastating South African businesses. Without even business level filtering, South Africa could be very vulnerable to viruses. Also, with little governmental action in South Africa or other countries, it seems filtering might be the best current remedy. Though no litigation has started on this topic, the ECT Act might take away spam-prevention measures and fail to punish spammers.

Since the laws, there has been some blacklisting of South African ISPs for dynamic IP addresses, though South Africa remains an unranked spammer. There has been one victory in South Africa, outside the ECT Act, which must be mentioned. Mobile phone providers have privately joined to make a code regulating SMS spam. The providers require an opt-in to receive messages. They established a website to make complaints, find out more about senders, and block networks or individuals, which seems to be working quite well without the so-called help of South African law.

For other countries, see the Spam Laws Worldwide Index.

 
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Re: Spam Around the World: South Africa (Score: 0)
by Anonymous on Monday, February 23 @ 04:40:44 EST
You can also find useful info on related legislation and anti-spam replies as per ECT act at http://www.internet.org.za


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Re: Spam Around the World: South Africa (Score: 0)
by Anonymous on Monday, February 23 @ 05:16:24 EST
You make an incorrect assumption when you say: "landmark legislation, carefully drafted in 2002" - the spam provisions were made slightly more stronger by the chair of the communications committee at the pleading of several people present at the hearings. This was done on the fly. The stuff that was there before was even more laughable and toothless.

You also make a mistake between filtering and simply rejecting e-mail attempts based on sender address/server/recipient. Not accepting e-mail is totally different to messing with the contents thereof.

otherwise a good dig at some legislation that could have been so much better


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Re: Spam Around the World: South Africa (Score: 1)
by Rebecca_Bolin on Monday, February 23 @ 13:56:58 EST
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The ECT Act was not reckless, nor was it produced on the fly. Debates started at least in 1999, and the government released a green paper [docweb.pwv.gov.za] in November 2000. Public comments were invited until March 2001, and the bill was not actually passed until over a year later. Even in the 2000 green paper draft, the ECT Act addresses spam, appealing to EU and then then more lax Autralian e-commerce policies. For months, probably even years, a number of organizations inputted comments [www.bridges.org] about the proposals. It is unrealistic to ignore the power of these suggestions and their corresponding lobbying efforts. In fact, a more cynical view is that this lobbying might have forced vague definitions as to make the laws unenforceable. As for the filtering requirements, I refer to the language of the ECT Act in Chapter XII, § 86,
(1) Subject to the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992), a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence.
(2) A person who intentionally and without authority to do so, interferes with data in a way which causes such data to be modified, destroyed or otherwise rendered ineffective, is guilty of an offence.
This restricts not only content modification but also filtering for any reason. As written, a filter at any level which "destroyed" information, a virus-infected e-mail, before it reached an unsuspecting user could be guilty of illegal censorship. Although it might allow filtering with proper "authority," this is hopelessly vague. The legally allowable level of filtering simply not explicit in this Act nor in the Bill of Rights which also protects a citizen's right to receive information.


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Re: South Africa (Score: 0)
by Anonymous on Thursday, March 18 @ 09:55:26 EST
A leading South African IT law firm, Michalsons, has a very good section on Spam. See http://www.michalson.com/spam.htm


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