PROBLEM ASPECTS OF THE LEGISLATIVE ADJUSTING OF MASS DISTRIBUTION OF ELECTRONIC POSTAL REPORTS

Swift development of technologies of transmission and exchange of information causes the inevitable increase of the informative loading on the users of informative projects in a network the Internet. It begins to cause numerous inconveniences of all greater amount of their users. Therefore one of important directions there is an improvement of existent legislative norms of Ukraine, that regulate distribution of information in the Ukrainian segment of world network the Internet.

For today in any country of the world there is not an all-embracing legislation that fully would regulate work of users in a network the Internet. Existent normative acts regulate the separate norms of using informative networks only.

As a rule, they regulate the questions, related to the observance of copyrights, violations in area of the use of trademarks, by defence of honour and dignity, unauthorized receipt of confidential information, uninvited mass distribution of electronic folias (to the spam), including advertisement character.

Distribution of spam creates moral discomfort and inflicts considerable sentinel losses to his recipients, that is why a fight against this phenomenon must be executed simultaneously both on legislative and on technically-applied levels.

Realizing the public danger of mass distribution of spam, the row of the states passed an act, related to limitation, or prohibition of the uninvited mass postal distributions of commercial or noncommercial maintenance.

The general signs of spam are considered:

а) electronic letters of advertisement, commercial or agitation character;

b) electronic letters that contain rough and touchy expressions and suggestions;

c) electronic letters that contain the request of them to send to other users of informative networks (chain letters);

d) use is in the electronic letters of impersonal and non-existent addresses.

The legislation of foreign countries realize the different models of classification of spam and control after his distribution.

By general criteria that determine a spam the not invited distribution is:

- the use of e-mail for mass distribution of electronic reports;

- sending of advertisement information without a previous consent (subscriptions) to her by recipients;

- distribution of unlawful reports on an e-mail.

- not possibility of free abandonment from the not invited electronic reports;

In the Ukrainian legislation of decision a concept "spam" first appeared in the decision of Cabinet of Ministers of Ukraine "About claim of rules of grant and receipt of telecommunication services" № 720 from August, 9, 2005.

Point 434 lays on Decisions direct prohibition on an order and suggestion of reports of similar character, and the anymore on their distribution for all users of network.

This prohibition is supported by the article 3631 of the Criminal code of Ukraine, that envisages approval as a fine in a size a from 8500 to 17000 UAH, or limitation of freedom within three years for intentional mass distribution of electronic reports without the previous consent of addressees, that causes violation or stop of work of computers or their networks.

As time showed, it follows to take the following lacks of the real article:

1. The criminal article provides for, that responsibility comes only, if a spam violated or shut down, in particular computer or computer network. In practice, a spam does not have such consequences;

2. There are considerable complications with finishing telling, who exactly is a violator. A spam practically always comes from an anonymous addressee;

3. An author of spam can be outside Ukraine, in this connection there is a number of jurisdiction questions.

In this connection it is necessary properly to change disposition of the article 3631 of the Criminal code of Ukraine.

In addition, it follows to bring in separate amendments in Law "On telecommunications" of Ukraine what would fasten a concept, "e-mail", "electronic mailbox and his address", "information for user", "unauthorized distribution", "electronic proof", and description of principle of grant of consent to the receipt and refuse of the not invited distribution a recipient, intended for an user. Moreover, it is expedient to delimit responsibility for distribution of mass reports to the legal and physical persons.

It is necessary also at legislative level to fasten the duty of providers at entering into contracts on a grant to inform the Internet of services the users about operating norms of legislation in relation to distribution of spam and his concrete actions in relation to users that engage in his distribution.

Source: Original publication

Published: 20.11.2013

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