Is new anti-spam legislation anti small business?

Stan Beer
Friday, 03 December 2004 06:47

IT Industry - Development

There are not many, if any, decent online business users who do not loathe spammers. They fall into the same basket as virus and Trojan horse propagators and the promulgators of the more virulent species of spyware products. However, the new Federal Government anti-spam legislation is a knee jerk over-reaction that may in fact hamper the activities of legitimate online small business operators.

In many ways, spammers are the worst type of internet abusers, not only because the vast chunks of bandwidth they commandeer on a daily basis reduces the performance of the net for legitimate users. But also because their junk mass email marketing activities have, in the words of the Australian Direct Marketing Association, "poisoned the channel" for legitimate online marketers.

In an attempt to curtail the activities of Australian spammers, the Federal Government has pushed through far reaching anti-spam legislation to be enacted by its telecommunications regulatory arm, the Australian Communications Authority (ACA). Under the legislation, repeat Australian spammers can be fined up to $1.1 million a day.

However, the question arises as to what internet marketing activity actually constitutes spam and what is legitimate. According to statistics from security vendors, such as Message Labs, over 70 percent of spam is now sent via Trojan infected machines and approximately 50,000 to 70,000 new zombies appearing each week. Thus, direct spamming is actually less of a problem than viral spamming and, it's a reasonable bet that direct spammers based in Australia probably constitute a small fraction of direct spammers globally (that's just a guess by the way). However, it is the direct spammers based in Australia that the ACA appears to have in its sights.

So how do we distinguish between a spammer and a legitimate internet marketer? Well it appears that in a nutshell the new anti-spam legislation stipulates that if you send unsolicited commercial email to someone you don't know then you're spamming them. As Anthony Wing, anti-spam manager at ACA says, "The way the (anti-spam) Act was written was to allow people to continue to market where they had an existing business relationship. That was designed to allow legitimate businesses to continue to talk to their customers, including about new things that they're offering. But complete cold calling is something where (legitimate) people are now using other methods. This an area where legitimate online marketers are victims of spammers because online marketing and prospecting is getting filtered out now. Using online cold calling is no longer acceptable."

Online cold calling is no longer acceptable? Does this mean we are back to the days of having to cold call a legitimate business target in person or over the telephone in order to establish a relationship and gain their consent before sending them an email? If so, then we might as well lock ourselves up because we have just entered an asylum where the cost of marketing has digressed to the old pre-internet paradigm.

However, there is a ray of hope for all legitimate online marketers, at least according to one authority. Jeremy Malcolm, chairman of the Spam Virtual Task Force within the Internet Industry Association, who had input into framing the new anti-spam legislation, claims the legislation has actually been designed to allow legitimate internet marketers to continue to operate rather than to hinder them.

Malcolm says, "There has been some criticism of the legislation but there are some safeguards built in. Obviously, you're not allowed to use software robots to harvest email addresses. However, if you manually find people on the internet who have jobs that indicate that they might be interested in your product or service and who have opted in by publishing their email addresses, then you are allowed to email them. Also purely informational newsletters can be sent out provided they're not promoting anything." However, as an increasingly small number of business people publish their email address on the net these days, the pickings are starting to look pretty slim on that score for a legitimate marketer.

So it looks like the spammers have won then. By forcing a Government into implementing what we believe to be an unnecessarily overregulated regime, they have succeeded in virtually shutting down an entire arm of e-commerce – online marketing. What's more, they have skewed the online business environment in favour of big business, with deep pockets and large online client bases. The internet was supposed to be the great leveller, enabling small businesses with limited marketing resources to compete cost effectively with the big end of town.

Is receiving an unsolicited email from a legitimate marketer, that can be deleted by a mouse click, more intrusive than receiving an unsolicited phone call, or in-person sales call, or junk mail parcel landing on your desk? Is it wrong for say a small local developer of POS software to send a carefully worded email to the MIS manager of a retail chain, while the large multinationals can send emails to their hearts content because of their pre-existing relationships?

For those who say yes, pardon us if we beg to differ, because if this is really the case, then the era of doing business online in Australia has taken a quantum leap backward. Comment on this article.