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Submissions on the
Consumer Protection Bill
3 September 2008
About ISPA
Electronic Transactions and the ECT Act
Unsolicited communications (spam spam spam) Industry Representative Bodies
Product liability
About ISPA
The Internet Service Providers’ Association is a South African Internet industry body, duly constituted not for gain ISPA currently has over 150 members, comprised of large, medium and small Internet service and access providers in South Africa Formed in 1996, ISPA has historically served as an active industry body, facilitating exchange between the different independent Internet service providers, the Department of Communications, ICASA, operators and other service providers in South Africa ISPA currently operates the only Internet Exchange Point (IXP) in South Africa in Johannesburg and is in the process of re-opening the Cape Town IXP and plans to open a Durban IXP shortly Various non-profit members, including TENET and SchoolNET Electronic Transactions and the ECT Act
Chapter VII of the ECT Act retained
Various transactions covered by Chapter VII of the ECT Act excluded
from the ambit of the Bill

Chapter VII meant as an interim step
Precisely because this Bill was missing in 2002 Creates the possibility of lacunae (gaps)
Unwanted Direct Marketing
Example of something treated in one way in the ECT Act and another in
the Bill

Possibly better in the Bill
Creates possibility of issues not being adequately addressed
Annoyance for most of us
For our members a multi-million Rand headache
What is spam
Spamming is the abuse of electronic messaging systems to
indiscriminately send unsolicited bulk messages. While the most widely
recognized form of spam is e-mail spam, the term is applied to similar
abuses in other media: instant messaging spam, Usenet newsgroup
spam, Web search engine spam, spam in blogs, wiki spam, mobile phone
messaging spam, Internet forum spam and junk fax transmissions.
Wikipedia
The Origin of the Term
“SPAM” is a Hormel brand name for tinned meat
Monty Python’s “spam” sketch
SPAM is mentioned 132 times in the sketch
Entered the Internet lexicon due to the repetitive and indiscriminate
nature of spam

Email spam
E-mail spam, also known as bulk e-mail or junk e-mail is a subset of
spam that involves sending nearly identical messages to numerous
recipients by e-mail
AKA unsolicited bulk e-mail (UBE)
Most criticism occurs when this is for a commercial purpose
UCE refers specifically to unsolicited commercial e-mail
Absolute Numbers
1978 - An e-mail spam is sent to 600 addresses 1994 - First large-scale spam sent to 6000 newsgroups, reaching millions of people As a percentage of the total volume of e-mail
MAAWG (Messaging Anti-Abuse Working Group) estimates that 80-85% of incoming mail is "abusive email", as of the last quarter of 2005. The sample size for the MAAWG's study was over 100 million mailboxes Highest amount of spam received
According to Steve Ballmer (November 2004) , Microsoft founder Bill Gatesreceives four million e-mails per year, most of them spam.
Not Just Viagra
Advance fee fraud spam such as the Nigerian "419" scam and
lottery scams
Have led to victims being defrauded and even assaulted
Phishing - spam used to scam users into entering personal
information on fake Web sites using e-mail forged to look like it is
from a bank or similar
Spammers may engage in deliberate fraud to send out their
messages
Spammers often use false names, addresses, phone numbers, and
other contact information to set up "disposable" accounts at
various ISPs
Often use falsified or stolen credit card numbers to pay for these
accounts. This allows them to move quickly from one account to
the next as the host ISPs discover and shut down each one
Often use viruses/worms/malware to infect target computers and
use these “zombies” to act as mail relays
South African spam
Not just foreign spam
Becoming increasingly used by South Africans
Some figures provided by one of our larger members
Approximately 8 million messages daily on one mail gateway Approximately 5% passed through as legitimate Our members spend millions of Rand on spam
Wasted bandwidth (85 - 95% of email wasted) Expensive filters and pre-emptive techniques to try prevent spam Annoying if in your “Inbox” – but a crisis for our members
May be hard to discriminate
It raises all the flags on the filtering system How the Bill can help
Repeal Section 45 of the ECT Act
Allows one spam message – consequence free Section 11(2) not appropriate for web spam
All experts agree you should not respond – it marks your address as valid Rather a blanket prohibition
An approach or communication, other than in person, meant primarily for the purpose of direct marketing, shall be unlawful if sent - • Without the prior specific request or consent of the intended recipient, unless a prior commercial relationship exists between the sender and intended recipient which would reasonably give rise to such communication How the Bill can Help
Fix 11(1)(c)
(c) in the case of an approach other than in person, to pre-emptively block, any approach or communication to that person, if the approach or communication is primarily for the purpose of direct marketing.
Seems to imply only the recipient can block
Add 11(1)(d) or 11(6)
Electronic communications service providers may implement such proactive measures as may be reasonable to prevent approaches or communications to their customers if the approach or communication is primarily for the purpose of direct marketing Real consequences
Strict Liability
Despite the laudable intention of Section 61, it is likely to lead to an increase in the retail pricing of goods to consumers as suppliers pass on the cost of additional liability insurance.
ISPA notes an apparent drafting error in Section 61(6)(c) This drafting error was discussed and confirmed with the Bill’s drafters (6) Harm for which a person may be held liable in terms of this section includes –
(a) the death of, or injury to, any natural person;
(b) illness of any natural person;
(c) any loss of, or physical damage to, any property, irrespective whether it is movable or
immovable; and

(d) any economic loss that results from harm contemplated in paragraph (a), (b) or (c).
The intention is to render a supplier of goods liable for death, injury, physical damage and pure economic loss caused by unsafe goods or a product failure supplier could be liable for pure economic loss occasioned by damage to the good itself. This was certainly not the intention of the drafters and goes far beyond what is reasonably necessary in the circumstances Strict Liability and the IT Industry
Electronic communications drives the economy
We know things can go wrong
We plan for it with
Nothing should break that badly that is causes physical damage to other
things (unsafe)

But failing to work (eg a burnt out fuse) may be physical damage
Industry Codes
ISPA currently has a Code of Conduct and a proud tradition of responding to
consumer complaints regarding its members and their activities

ISPA has applied repeatedly since 2003 for recognition as an industry
representative body in terms of Chapter XI of the ECT Act, which application is
currently being processed by the Department of Communications

The majority of ISPA’s members hold licences in terms of the EC Act and such
members will be subject to the Code of Conduct and will be required to finalise
their own Consumer Service Charters, as mandated by ICASA in terms of the EC
Act

ISPA recognises that it will be possible for ICASA to apply for exemption in terms
of Section 5(3) of the Bill for the industry ICASA regulates, namely Electronic
Communications Network Services, Electronic Communications Services,
Broadcasting Services and certain licence exempt Electronic Communications
Network Services, Electronic Communications Services and Broadcasting
Services

Industry Codes
ISPA submits that as an industry representative and self-regulatory
body, it should be entitled to make such application for exemption and
this should not be restricted to statutory regulatory authorities alone.

Certain of the services offered by ISPA’s members fall outside of these
services regulated by ICASA. This also creates the possibility of

Source: http://www.pmg.org.za/files/docs/080903ispa.pdf

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