So you think that spam, opting out of junk mail and the OSI protocol stack have nothing to do with each other? I think there are a lot of areas where they affect each other, especially in the SA Internet arena.
Elsewhere in the world the courts or regulators appear to have decided that Internet access falls into the sphere of access or basic telecommunications services.
Elsewhere in the world (at least in some areas), the courts or regulators appear to have decided that Internet access falls into the sphere of access or basic telecommunications services; this means typically implies that the carrier of the information (the IAP) cannot be held responsible for the content of messages carried by its network. (This was discussed in last week`s column in some detail.)
In South Africa, however, we don`t yet have clarity on this issue. During the on-and-off `war` between Telkom and the independent providers and their association, ISPA, the most contentious issue has in fact become just this question: if Internet access is a basic telecommunications service, then Telkom should hold a monopoly over the provision of Internet access; if not, Telkom should compete fairly and on equal terms with the Internet providers whose sole supplier it is. This is an issue of regulatory policy and competition law, primarily.
Telkom bases its argument about Internet access services on the OSI protocol stack, claiming that IP (the Internet Protocol) is on a layer equivalent to those that are classified, by the Telecommunications Act, as part of the basic services which it is allowed to solely provide. The independent IAPs hold that that argument is spurious and flawed, as legislation typically shouldn`t be based on engineering categories.
Who`s responsible for spam?
But what`s equally interesting - though not always related - are the implications of responsibility regarding Internet access providers for unsolicited commercial content, or `spam` as it`s known in the industry. If Internet access falls into the same category as basic telecommunications service, the provider would carry no responsibility for it; access to abuse data would be made available only on a court-order basis. If, however, Internet access is a value-added service, then perhaps different rules relating to self-policing are appropriate.
The discussion about spam has been raging for as long as the Net`s existence, and the saga hardly bears re-telling. Internet providers have traditionally been involved in rooting out what`s perceived as a persistent problem by collaborating with users whose privacy has been violated. IAPs didn`t wash their hands off the issues by saying, "The user has to protect himself."The problem with this approach is, also as noted in last week`s column, that IAPs might have made themselves into targets by demonstrating a community-building spirit and good will in aiding their users to rid themselves of spammers. Courts might now believe - since IAPs are
creating the rules as they roll out the Internet - that it`s intrinsically the duty of the IAP to disclose offender details and take action. As a corollary to this argument, a court of law might actually expect anti-spam action from an IAP. All this is pending a clear regulatory decision on what type of service Internet access really is.
Opt-out and the direct marketing industry
In a related development, there are some doubts about the relative strength of the SA lawmaking system as it appears that previously strongly worded proposed legislation whose purpose it was to protect South Africans` privacy from direct marketers. The proposed legislation was in fact quite a lot more strongly worded than in most other parts of the world, resulting in the direct marketing lobby becoming rather vocal about the issue. Now, it appears as though the legislative proposal is going to be revised, provided marketers make provision for an `opt-out` mechanism allowing recipients to indicate their refusal to be carried in the database in question.
On the Net, the `opt-out` mechanism cannot be policed either, and most spammers aren`t honest or helpful at all... since many reside in the US or elsewhere, SA courts would have little or no legislative reign over them anyway. Right now, though, the main culprit in media stories about spam appears to be the IAP, whose identity in the popular mind of being the `bringer of the Internet` contributes to such villification.
Providers need to recognise this and take it with a pinch (nay, bucket) of salt while campaigning for their rights as telecommunications carriers, not purveyors of content.
Share
