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Spamming in EC Law

Spamming in EC Law. A Constitucional Approach. Manuel David Masseno Beja Polytechnic - Portugal. The Subject or What’s Spam?. Spam or two urban legends: canned meat and / or Monty Python Unsolicited Bulk E-mail vs. Unsolicited Commercial E-mail

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Spamming in EC Law

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  1. Spamming in EC Law A Constitucional Approach Manuel David Masseno Beja Polytechnic - Portugal

  2. The Subject or What’s Spam? • Spam or two urban legends: canned meat and / or Monty Python • Unsolicited Bulk E-mail vs. Unsolicited Commercial E-mail • Commercial Speech as ... a special sort of speech • Why Direct Marketing relies on Spam? LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

  3. The Constitucional Framework The Charter of Fundamental Rights of the EU (Article 6.2 Treaty on European Union) • Personal Liberties • Article 7 (Respect for private and family life) • Article 8 (Protection of personal data) • Article 11(Freedom of expression and information) • Economic Liberties • Article 16 (Freedom to conduct a business) • Article 38 (Protection of consumers) • Article 52 (Scope of guaranted rights) LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

  4. The Technical Approach • Mark and Block! • Personal filters vs. “industry filtering initiatives”(W. 30 D. E-comm.) • But... • The confidentiality of communications (Art. 5 D. 2002/58/EC) • The non monitoring by the providers (Art.15.1 D. 2000/31/EC) • What happened to the Communications DecencyAct of 1996... LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

  5. The Self-regulatory Approach • Why would spammers self restrain? • The ICC Guidelines on Adevertising and Marketing on the Internet, 1998 • Codes of Conduct, certification of commercial messages and unloyal competition criteria • Consumers resistense and “flamming”... LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

  6. The “Euro-American Approch” • Opting-out • D. 95/46/EC – on personal data (Art. 14) • D. 97/66/EC – on personal data and privacy in the telecommunications (Art. 12) • D. 97/7/EC – on the protection of consumers in respect of distance contracts (Art. 10) • D. 2000/31/EC – on electronic commerce (Art. 7.2) • The Spam Can Act of 2003 LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

  7. The “Euro-American Approch” II • Opting-in • D. 2002/58/EC – on privacy and electronic communications (Art. 13) • Pros and cons of Opting-out and Opting-in • What about the “respect (for the) essence (of) rights” and the “principle of proporcionality” (Art. 52 1. of the Charter)? • A competitive advantage for American companies? LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

  8. The Poisoned Tree Approach • Goin’ up river right to the source: e-mail data bases and consumer profiles • Enforcing the criteria for making data processing legitimate(Art. 7 D. 95/46/EC) • Controling the transfer of data to third countries • How to deal with “Spam Paradises? LEFIS Workshop on "Infrastructural Law", Rovaniemi, 4-5 June 2004

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