Spam Laws
An Overview of Section 233... "A person who initiates a communication using any applications service, whether continuously, repeatedly or otherwise, during which communication may or may not ensue, with or without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at any number or electronic address, commits and offence."
The intent underlying Section 233(1)(b) may be utilised to deal with unsolicited communications. It may be an appropriate section to deal with the problems faced by spamming activities.
Notwithstanding, to fall within the scope of the section however the communication must have been initiated with the intention of annoying, abusing, threatening or harassing a person. In cases of spamming, the consequences or effect of such communication may be that the recipients are annoyed, harassed or abused. However, it may be difficult to argue that this was the intention of the sender. The requirement or kind of "intent" the section requires may not always exist or be difficult to determine.
This may give rise to enforcement problems, bearing in mind that the onus of proof is on the prosecution. Further, such intention may not exist given that poeple who initiate such communication for marketing and advertising purposes are unlikely to initiate such communicaton with the intent to annoy abuse, threaten or harass potential clients.
Section 233, however, may be seen as being inadequate in some aspects, for instance:
1 : There are no provisions in this section that allow a person to opt in or opt out to receive unsolicited Internet e-mail or short messages;
2 : There is no requirement that all electronic messaging contains accurate details of the sender's name and address;
3 : There are no civil sanctions for unlawful conduct including financial penalties and ability to seek enforceable undertakings and injunctions to minimize the proliferation of spamming.
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