SPAM – Spammers are also subject to criminal liability

SPAM, unsolicited electronic commercial message (advertising) sent to us without our consent, is a long-standing issue that every e-mail user has to struggle with.

Obviously, not every e-mail advertisement constitutes a SPAM. It is sometimes the case that you agree, more or less consciously, to receive commercial information. This happens when you give so-called marketing consents requested from you, e.g. during registration on the website of a seller. In some cases, the consent for receiving commercial information also includes third parties, e.g. entities which cooperate with the seller. Sometimes you may be encouraged to give consent by certain benefits, such as price discount, free shipping and other free-of-charge services. You may have doubts as to whether your consent to receive commercial information has been obtained in a correct manner. However, in principle, advertising messages which you receive by e-mail following such consent should not be regarded as a SPAM.

A more common practice is that you receive commercial information by e-mail even though you did not any consent. SPAM may be sent directly by the seller or by the seller’s third party entities engaged in offering such “marketing services.” How do spammers work? Most often they use computer programmes, so-called spambots, to scan websites for e-mail addresses and create a database. Then, they use the collected e-mail addresses to send SPAM.

When we see SPAM, we usually feel annoyed and tend to remove it from our e-mail box. However, this does not have to be the case. According to the recent judgment of the District Court for Warszawa-Wola, damages were awarded in connection with the infringement of personal rights due to unsolicited commercial information.

Note that spamming is not only an act of unfair competition or infringement of personal rights, but also a prohibited act, i.e. petty offence referred to in Article 24 of the Act on providing services by electronic means. For spamming, the court may impose a fine of up to PLN 5,000. Spamming is prosecuted at the request of the aggrieved party, i.e. SPAM recipient, and the Police acts as a public prosecutor. In petty offence cases, you can also file a motion for penalty with the court. In such a case, you act as a prosecutor and it is your obligation to prove the responsibility of the perpetrator.

A precedent decision for SPAM in a civil case should result in more intensified fight against this undesirable phenomenon, including the use of legal measures, and “revive” Article 24 of the Act on providing services by electronic means, seemingly dead so far.    

Attorney at law Michał Korszla