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The sending of unsolicited commercial e-mail has reached excessive
levels that substantially impact the interests of e-mail recipients and the equipment
and services of Internet service providers.
To address this situation, at a meeting on 24 November 2008 the National Communications
Commission (NCC) approved the draft Regulation of Unsolicited Commercial Electronic
Mail ("Regulation"). |
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The draft Regulation, which is based in part on legislation in countries
such as the USA, Japan
, and the EU, aims to assure the convenience of Internet use and enhance the security
and efficiency of the online environment. It provides for controls on activities
preparatory to spamming, adopts an "opt-in" system combined with a free-of-charge
reply mechanism, and allows service providers to withdraw communication services
under specific circumstances. The remedies
provided for against spammers include class actions. To facilitate the sound operation of the class action system, the
draft Regulation grants class action organizations the right to request service
providers to disclose data, and to collect necessary fees from class action participants.
The main content of the draft Regulation
is outlined below: |
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An opt-in (tacit refusal) system
is adopted for the receipt of commercial e-mails. That
is, a sender of commercial e-mails may lawfully conduct marketing activity by sending
e-mail to any recipient once only, after which if a recipient has not expressly
indicated that it wishes to continue to receive such mails, the sender may not send
further mails. The sender is required
to provide a reply mechanism free of charge. |
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The "subject" field of a commercial
e-mail must contain the indication "commercial", "advertisement", or another indication
announced by the NCC as being sufficient to identify the mail as commercial e-mail. |
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The draft Regulation expressly
states that contractual arrangements that violate the Regulation's provisions shall
be null and void. |
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Spamming by dictionary attack
is expressly outlawed, and e-mail service providers may refuse to transmit or receive
such e-mails. |
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The civil damages mechanism is
retained, with presumptive damages set at NT$500 to NT$2000 per e-mail message,
and the provision of a class action system. |
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The automatic collection, or sale,
of e-mail addresses without consent, and actions to facilitate spamming, such as
the supply for the purposes of spamming of computer programs with spamming functions,
are expressly defined as incurring joint and several liability for damages together
with the spammer. |
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The NCC is empowered to order
service providers to adopt necessary measures to prevent spamming, and administrative
penalties are provided for to encourage service providers to enforce such measures. |
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To facilitate the operation of
the class action system, it is expressly provided that a class action organization
may require a service provider, advertiser, or advertising agent to provide information
on a spammer. Administrative penalties
are provided for to assist the NCC in requiring such parties to cooperate in disclosing
information. |
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The draft Regulation will be submitted to the Executive Yuan for
approval, and passed by the Executive Yuan to the Legislative Yuan for legislative
scrutiny. If successfully enacted,
the proposed Regulation can be expected to reduce excess expenditure of resources
by both the public and service providers, and thus to enhance the protection of
citizens' rights to communication and of consumers' interests. |
