A local online marketing company has lodged a complaint with the Competition Commission against the Internet Service Providers' Association (ISPA), after being listed in ISPA's public “Hall of Shame”, which identifies South African sources of spam.
Manager of Kaleidoscope Marketing Francois Swart is adamant the company is operating within the legal boundaries, and that the ISPA is “causing malicious damage to us and others on the list”.
The company's complaint to the Competition Commission alleges that ISPA is guilty of anti-competitive behaviour.
Kaleidoscope Marketing is a Cape Town-based advertising and e-marketing company. According to Kaleidoscope: “We create sales for corporate clients through a scientific process called Response eMarketing.”
“Sending of bulk e-mails is how we as market ourselves,” says Swart. “A number of other people have tried to corner ISPA on this issue before, but we have found it very difficult to get hold of them.
“We are simply marketing ourselves in a manner that is 100% within the law. If someone does not want to receive further e-mails from us, they can unsubscribe,” says Swart.
According to Swart, his company's listing on the Hall of Shame is making it extremely difficult to do business. “ISPs see that listing and decide on behalf of their clients to block e-mails from us. I have even had to use another e-mail address just to correspond with my clients.”
However, ISPA has rejected Swart's claim of anti-competitive behaviour and says it is acting well within its rights. “ISPA believes that this claim is completely without merit, and intends to defend its right to combat South African spam vigorously,” says ISPA GM Ant Brooks.
“ISPs [Internet service providers] have an obligation to their consumers both to filter out spam sent to their customers and to take action against anyone attempting to use their networks to send spam,” says Brooks.
Within their rights
The ISPA said that, while some of its members may make use of the information provided by the Hall of Shame to block e-mail from listed sources, “as owners or operators of private networks, they have every right to do so”.
Swart says that, while it took some time to receive a response from the Competition Commission, there are now more people from “legitimate” companies that have been listed on the Hall of Shame who have backed up Kaleidoscope's complaint.
“We feel that this is a bit of a 'big brother' situation, where a small group of big players are getting together and deciding that they can make their own rules,” says Swart.
Defining spam
ISPA's Hall of Shame was launched in 2008, following the development of a spam reporting system, which allows ISPA members to report local spam to the association.
“In order for a company or individual to be listed on the Hall of Shame, ISPA needs to receive multiple reports of unsolicited bulk e-mail from different sources,” says Brooks.
The ISPA defines spam as unsolicited bulk e-mail, with two exceptions: mail sent by one party to another where there is already a prior relationship between the two parties and subject matter of the message(s) concerns that relationship, and mail sent by one party to another with the explicit consent of the receiving party.
“This does not necessarily accord with the definition in the Electronic Communications and Transactions Act, nor does it imply that spam sent is unlawful or illegal, only that it and the selling of e-mail lists is contrary to ISPA's code of conduct,” says the association.
“Our approach is in line with the provisions of the Consumer Protection Act and the Protection of Personal Information Bill, which provide for stricter limitations on the sending of unsolicited messages than the current Electronic Communications and Transactions Act.”
The Protection of Personal Information Bill is currently being finalised by Parliament.
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