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Contribution Feb 2013 Text Display Screen



Name : HILL, Richard
Date : June 22, 2013
Organization : Hill & Associates
Country : Switzerland
Issues : Issue 1

Contribution :

WTSA Resolution 52 on countering and combating spam invites Member States "to take appropriate steps to ensure that appropriate and effective measures are taken within their national and legal frameworks to combat spam and its propagation".

Appropriate steps are well known, see for example the ISOC web site <http://www.internetsociety.org/spam>:

* Effective application of anti-spam law

* Awareness raising

* Development of technical solutions

* Strong international cooperation

Article 7 of the 2012 International Telecommunications Regulations (ITRs) states:

"Member States should endeavour to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services.

Member States are encouraged to cooperate in that sense."

This article has been criticized, in particular on the grounds that it could lead to restrictions on freedom of speech. But such criticism is not justified, see below.

On the contrary, the ITRs encourage countries to cooperate, and this could be understood to include cooperation to adopt appropriate spam legislation, and to cooperate when doing so. Indeed it would be desirable for countries to cooperate to adopt best practices in these areas. That is, spam legislation that clearly do not impinge on human rights, that respect due process, and that do not excessively restrict commercial speech.

Thus adoption of the ITRs should make it less likely that some country would (perhaps unwittingly) adopt inappropriate measures.

The criticism of article 7 of the ITRs is not justified because the ITRs are subordinate to the ITU Constitution, which recognizes human rights (and is consistent with the relevant UN instruments on human rights), so nothing in the ITRs can limit the human rights obligations of states.

To make this clear, a provision was added to the Preamble of the ITRs which says "Member States affirm their commitment to implement these Regulations in a manner that respects and upholds their human rights obligations."

Further, Article 1 of the ITRs provides that "These Regulations do not address the content-related aspects of telecommunications."

Thus Article 7 is about measures to counter spam that do not depend on content. There are many such measures (such as address-filtering), and some are described in Recommendations ITU-T X.1231 and X.1240.

Those who argue, in the alternative, that there are no possible non-content-related measures regarding spam are in effect arguing that Article 7 is inoperative.

Failure to accede to the ITRs could have unintended negative consequences, in particular the development on non-harmonized national practices which might well lead to an undesired fragmentation of the Internet.

A formal legal explanation of the situation is found in Richard Hill, WCIT: failure or success, impasse or way forward?" International Journal of Law and Information Technology (forthcoming) DOI:10.1093/ijlit/eat008, see <http://www.hill-a.ch/wcit>