Suggestion I:
Spam Control:
“Spamming” is related to
“Marketing”, “Freedom of Speech” and “Privacy Rights”. It is necessary to
therefore bring legislation on controlling “Spam” without affecting the
genuine right to use the Internet media for marketing both for commercial,
social and political purpose. Similarly, the legislation should not curb the
freedom of speech while upholding privacy of individuals.
The suggestion on “Spam
Control” therefore includes modalities for managing genuine use of Internet as
a communication medium through a “Bulk E-Mail Licensing Programme”.
It is open for the Government
to designate the CCA (Controller of Certifying Authorities” as the appropriate
authority for the purpose of Spam Control.
XY) Sending Unsolicited
Electronic Messages:
Except under
a valid Bulk E-mail license from an appropriate authority
Whoever,
1) Sends or
causes to send an unsolicited electronic message/s of any description
with a source identity that is not disclosed, or
2) sends or
causes to send an unsolicited electronic message/s of any description after
the addressee has duly notified him of his intention not to receive such
communication as prescribed under this Act, or
3) Except
under an express consent of the recipient, sends or causes to send an
electronic message/s of any description containing information that is
obscene or offensive, that may defraud or is intended to defraud, that may
cause or is intended to cause distress, that may break or is intended to break
any law in force or that may otherwise create disharmony in or harm to the
society or cause harm to the integrity of the nation and friendly relations
with other countries,
shall be
punishable under this Act with any or all of the following
a) Payment of compensation or damage to each of the person/s affected by
the offence subject to a maximum of Rs 1 lakh per person.
b)
Imprisonment subject to a maximum of Two Years
c)
Fine subject to a maximum of Rs 2 lakhs
Notwithstanding the punishment or penalties mentioned above, if the offence as
defined under (XY) above results in or is intended to result in an act that is
an offence under any other law in force, the offender shall also be liable
for punishment or penalty to which the offender is liable under such laws.
Provided
however that if any message is caused to be transmitted by mistake of fact or
due to technological factors beyond the reasonable control of the person in
whose name the message is sent, no offence would be recognized if such a
person proves that the message was sent without his knowledge and he had
exercised all due diligence to prevent commission of the offence.
Explanation:
For the
purpose of the section (XY) above,
a. the
disclosure of source identity is considered sufficient if a reply can be sent
to the disclosed source address and such reply does not bounce.
b. an
addressee may communicate his intention “not to receive” a communication
through a digitally signed message or in any other manner that may be laid
down for the purpose and unless specified, such notice shall expire after 3
months.
c. the
unsolicited message shall be admissible as evidence in a Court of law even if
it is not digitally signed. (Ed: corresponding change required to be made
in Indian Evidence Act)
d. the
intermediary who causes the unsolicited messages to be transmitted shall also
be liable under the Act as if the offence was committed by them unless he
proves that the offence was committed without his knowledge and the
intermediary had exercised all due diligence to prevent commission of the
offence.
e. a message
is considered “solicited” if it may be inferred from the conduct and existing
business or other relationship of the recipient that he consented to such
messages being sent to him.
f. “Express
Consent” in sub clause (3) means only a consent obtained through a manually
entered affirmative expression.
g.
“Appropriate Authority” for the purpose of this section shall be the
“Controller of Certifying Authorities” or any other authority specifically
designated for the purpose by an order of the Government of India.
(Comments
welcome)
Naavi
July 5, 2005
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