Unsolicited Advertising by Mail (Spam)

Advertising mails make up a significant percentage of the traffic in electronic post these days. Anyone who does not wish to receive these advertising messages often has great difficulty stopping the mails from some advertisers being sent to their address.

Unsolicited and often unwanted advertising by e-mail is therefore primarily a phenomenon of scale, as the sender can reach a vast number of recipients with the minimum of expense and effort. The problematic aspect of the whole procedure is that most of the trouble and cost - connection charges, reading and deleting the mails, space in the memory - is borne by the recipients, at least some of whom have no desire to receive the advertising at all.

Under the current legal position in Switzerland, the following two requirements must as a minimum be fulfilled for the unsolicited delivery of advertising mails to be considered lawful: first of all, the only addresses that can be used are those that have been legally obtained. This primarily means that in addition to those addresses in respect of which the proprietors have given express permission to certain advertisers for use for advertising purposes, or have agreed to their use in relation to specific fields of interest, only those public directories can be considered whose regulations on use do not exclude use for advertising purposes. Where the proprietor does not wish his address to be used for advertising purposes and states as much expressly or implicitly, that address may not lawfully be added to a mailing list. An example of an express statement would be, for example, a notice such as "No Advertising" or "no address grabbing" on a website. An implicit prohibition can probably be assumed where the address is given for a specific purpose that has nothing to do with advertising. Secondly, the recipient of advertising mails must at all times be given a simply opportunity to exercise his right to have his address removed from the list. The simplest and most appropriate method for this medium is undoubtedly to provide an e-mail address in the advertising mail itself that can be used to do this. This requirement is also laid down in the principles - in particular principle 4.4 - of the Swiss Commission of Fair Trading (http://www.lauterkeit.ch/pdf/grundsaetze.pdf). However, even this simple requirement of the possibility of deletion is often not provided by certain well-known senders of advertising mails. In our recommendation dated 24 January 2003, as mentioned in the 9th Annual Report, we formally requested an advertiser based in Zurich to modify his business activities and data processing procedures in order to comply with the statutory regulations. The recommendation is published in the Annex to this report (Section 13.7.3).

In Switzerland, the range of legal remedies available to those who wish to safeguard themselves from unsolicited advertising is (still) minimal (cf. on these remedies our spam leaflet on www.edsb.ch). In relation to advertisers in the private sector, arduous civil proceedings that are often costly and uncertain as to outcome have to be taken. Three years ago the Federal Council received a motion (cf. Motion 00.3393) on the matter demanding a revision of the legal position. It is planned as part of the revision of the Telecommunications Act (TCA) to add an article to the Federal Act on Unfair Competition (UCA) in order to deal with this. The legal position in neighbouring countries is rather different. France, for example, employs a significantly stricter approach. There the data collections with addresses must first of all be registered with the supervisory authority CNIL (Commission Nationale de l'Informatique et des Libert├ęs), and a breach of the regulations on the lawful acquisition or passing on of addresses may lead to prosecution with maximum penalties of five years imprisonment and a fine of 300'000 Euro. Further information can be obtained from the CNIL website (http://www.cnil.fr). The EU, in its directive 2002/58/EU, has enacted the principle of obtaining advance consent, and its member states must implement this in their domestic legislation by 31 October 2003. In some countries (Austria, Denmark, Finland and Italy), the principle already applies in accordance with previous regulations.

[July 2003]