Mailing (spam)
Surely each of us received a text message to the phone from unknown caller that contains any suggestions for the purchase of goods, services, works, or an e-mail that a computer program recognized as "spam". In the head Willy-nilly thoughts: "What is spam? He cast than from other messages? And what can be done to prevent spam and SMS messages, the advertising character, was no more?".
Now, the term "spam" appears in the by-law, and it refers to telematics e-mail message (one or more of telecommunications), which must have simultaneously the following features:
— used an indefinite number of persons;
— delivered to the subscriber and/or user without their prior consent;
— do not allow to define the sender of this message, including in view of the instructions it non-existent or falsified sender address (item 2 of Rules of rendering of telematic communication services, approved by the Decree of the RF Government dated 10.09.2007 of No. 575 (the "Regulations")).
Since the Russian legislation does not stipulate requirements for the content of spam, its "filling" may be different (the distribution of advertising materials, video messages of promotional nature, etc.).
Just wanted to note that to stop the sending of spam is currently almost impossible due to the fact that there are no technical means to accurately set the endpoint address of the sender. And the Federal Antimonopoly service, as the competent public authority, as a rule, in such cases, or refuses to initiate proceedings or refuse to attraction to administrative responsibility of guilty persons, as it is impossible to identify the senders of such messages.
Does not contribute to the resolution of the situation and "weak" legal regulation of the dissemination of spam.
The rules are perhaps the only instrument that explicitly addresses the subject of "spam". Rules excluded the liability of the operator to subscribers and/or users of services for their action (inaction) that affect the distribution of spam, as well as responsibility for developing measures to combat spam. Provides that such obligation, the operator can assume on a voluntary basis.
However, as a rule, operators are not in a hurry to make himself more "problems" as these activities are quite costly and as a result, their implementation may hurt the reputation of the company.
The rules establish the duty of the subscribers/users "to prevent the spread of spam".
In our opinion, shows the distribution of rights and responsibilities on the fight against spam between subscribers/users and operators obviously demonstrates the impossibility of achieving a positive result. Arsenal operators far exceeds the capabilities of conventional subscriber/user, and to create an effective mechanism against the proliferation of spam, you must "interest" operators through the "carrot and stick". For example, on the one hand, to consolidate at the legislative level the obligation to develop and improve measures for preventing the spread of spam, the imposition of liability for failure to comply with these and other events, on the other hand, is to provide operators, adequately performs such duties and not having for a certain period of time "penetrations spam", benefits in the field of taxation, with the lease of buildings, premises belonging to the state, etc.
As for SMS messages or messages of an advertising nature received by telephone or e-mail address and allows you to set the end of the sender (advertisements), the legislation establishes clearer "scheme" prohibit implementation of such incidents and involvement of perpetrators to responsibility.
In particular, legislation of the Russian Federation it is provided that sending messages over the network of mobile telephone communications, including the dissemination of advertising in this way is allowed only with the prior consent of the subscriber or recipient (article 44.1 of the Federal law of 07.07.2003 № 126 – FZ "On communications" (the "communications Law"); article 18 of the Federal law of 13.03.2006, № 38 – FZ "On advertising" (hereinafter – the "Law on advertising")). Such consent must be expressed through actions that uniquely identifies this subscriber/recipient and allows to reliably determine his will to receive the newsletter.
As explained by the SAC, "the advertising Law does not define the manner and form of obtaining the prior consent of the subscriber to receive advertising through telecommunication networks.
Consequently, the consent of the subscriber can be expressed in any form, sufficient for its identification and confirmation of the will to receive advertisements from a particular advertisement" (p. 15 Resolution of the Plenum of the RF from 08.10.2012 № 58 "On certain issues of practice of application by arbitration courts of the Federal law "concerning advertising"").
It is worth to note that in practice the inclusion of "unambiguous" consent to receive promotional mailings in the contract or in General conditions of telecommunications services in force from the operator, not the appropriate consent of the subscriber/recipient to receive advertising mailings. Due to this circumstance that these documents constitute a public offer (proposal) and subscriber/recipient actually deprived of the opportunity to waive such conditions in whole or in part (Decision UFAS across Moscow of 16.02.2017 N IG/7726 in the case of N 3-18-242/77-16).
Given the above, it is possible to obtain the subscriber's consent to send promotional emails by including in the contract terms that will provide the subscriber with a right of choice to opt in or opt out of receiving such communications (for example, by putting a "tick" in a particular field).
We also consider it necessary to note that since "under the subscriber or the addressee to understand the person whose email address or phone received the corresponding advertising message," and the burden to prove the fact of consent is imposed by the legislation of the Russian Federation on the advertisement, the last before sending messages you must ensure that consent to receive advertising messages provided to the "current" owner of the number, and not the former. Otherwise, dissemination of advertising and distribution is recognized carried out without the consent of the subscriber/recipient (Decision UFAS on the Chelyabinsk region from 15.02.2017 G. in the case N 01-08/2017).
The communications law and the advertising Law provides to the subscriber/recipient has several options upon receipt without consent of the advertising message on phone or e-mail address:
■to contact the operator of mobile radiotelephone communication with the request to stop transmitting to the user equipment corresponding text messages and from which the caller gives up. The operator has no right to deny the subscriber and shall, without charge to discontinue the newsletter (article 45 of the communications Act).
■ apply to the Antimonopoly body of violation of the legislation of the Russian Federation on advertising, the inspection on this fact and bringing those responsible to justice (article 36 of the Law on advertising). When it is desirable to attach: a copy of the contract with the service provider; details of obtaining telephone services with information about received to a specified number messages; photo or screenshot of the received advertising message.
■ to go to court or arbitration court, including claims for damages, including lost profits, for damages caused to health of physical persons and (or) property physical or legal persons, etc.
In exercising these rights, you should remember that:
1) the message should be characteristic of advertising, i.e. it should contain information that is addressed to an indefinite circle of persons and aimed at attracting attention to object of advertising, formation or maintenance of interest to it and its promotion on the market. The practice adheres to the position that the message is recognized, unless the information text lacks any indication of means of identification allowing to identify the recipient, regardless of what it is aimed at a specific email address or phone number (Decision UFAS across Moscow from 16 January 2017 in the case of N 4-14.3-3/77-17);
2) sending accept only messages sent using the numbering does not correspond to the Russian system and numbering plan, as well as messages, the transmission of which is not stipulated by the agreement on interconnection with foreign operators (that is, for example, using the "short" or "alphabetic" numbers) and messages sent automatically. Messages that do not meet these conditions, do not fall under the concept of distribution (article 2 of the communications Act; the Letter of the FAS of Russia 05.12.2014 № AK/49919/14);
3) in the case of sending advertising messages of rooms, not relevant Russian system and numbering plan, the message, the transmission of which is not stipulated by the agreement on interconnection with foreign operators, and will send automatically the operator of the subscriber is sending, may be recognized by the advertisement. This circumstance, according to the FAS Russia "derives" from the rules of part 2 of article 44.1 of the Law on communications, in which "the distribution network of mobile radio communications initiated by the customer distribution is accomplished on the basis of the agreement concluded with the operator of mobile radiotelephone subscriber that will use the newsletter. The subject of that agreement are services for the implementation of the distribution operator". Therefore, the operator of the subscriber is sending, not only performs the functions of message delivery, but also provides the direction of the message in the telecommunications network, respectively, has the legal and technical ability to evaluate the content of the message, including the presence of advertising messages, and to check the customer mailing the consent of the subscriber to receive such distribution (the Letter of the FAS of Russia 05.12.2014 № AK/49919/14);
4) cases on the facts of advertising, containing signs of violations of Russian legislation on advertising, only in the territory under the jurisdiction of one territorial body FAS of Russia initiated and considered in the place of distribution of such advertising. In the case that before the initiation of proceedings or in the course of its consideration will be found to be improper advertising extend to the territory within the jurisdiction of two and more territorial bodies of the FAS Russia revealed such a violation of territorial body FAS of Russia passes the appropriate materials or the case in territorial body FAS of Russia at the place of location (place of residence) of the person in which actions contain signs of the aforementioned disorders, or applied for by the FAS of Russia on vesting him with powers to initiate and review the case (section 4, section 5 of the Rules of examination by the Antimonopoly body of cases filed for violation of the legislation of the Russian Federation on advertising, approved. Decision of the Government dated 17.08.2006, No. 508; the Decision of Arbitration court of the Ural district from 28.02.2017, № F09-11980/16).
In conclusion of this article, it should be noted that at present the implementation of the illegal distribution can be held liable only distributors (article 38 of the Law on advertising). Liability may be civil or administrative. In particular, article 14.3 of the administrative code establishes liability advertisement distributor for the violation of the legislation on advertising. As penalties there is a penalty for citizens — in the amount ranging from 2000 to 2500 roubles, for officials – from 4000 to 20 000 rubles, for legal entities — from 100 000 to 500 000 rubles.