"Judge in Argentina Orders Halt to Spamming in First E-Mail Junk Case", by David Haskel. (Reproduced with permission from Privacy & Security Law Report, Vol. 2, No. 47, p. 1344 -Nov. 24, 2003-. Copyright 2003 by The Bureau of National Affairs, Inc. -800-372-1033-).

BUENOS AIRES- A federal judge Nov. 11 enjoined a defendant from sending any more spam to two lawyers in the first court ruling involving unsolicited bulk e-mail in Argentina (Tanus v. Cosa on Habeas Data, Fed. Civ. and Com. Ct., No. 1791/03, 11/11/03).

Judge Roberto Torti of the Federal Civil and Commercial Court No. 3, Secretariat No. 6, of the city of Buenos Aires issued an injunction ordering defendant Carlos Cosa to refrain from sending spam to the plaintiffs, pending a final ruling on the case.

Gustavo Tanus and Pablo Palazzi, two Argentine lawyers specializing on the Internet and data protection, decided in February to join forces to take Cosa to court.

Judge Torti's order was the first ruling based on Argentina's Personal Data Protection Act (Law 25326), which was enacted in October 2000. In their complaint, the plaintiffs protested that Cosa violated Section 27 of the law, which gives e-mail recipients the right to opt out, and failed to comply with their request that their e-mail addresses be deleted from Cosa's database.

"This is a very important first step," Tanus told BNA Nov. 19. "We hope this will help generate awareness" about spam.

He said Cosa repeatedly sent him and Palazzi bulk e-mail from http://www.publicc.com.ar and other similar domains offering to sell e-mail addresses databases.

Although the plaintiffs have made no monetary claims, Law 25326 contemplates fines of up to 100,000 pesos ($34,500) for this kind of offense.

Still, Tanus said the legislation is not specifically designed for fighting spam. "This is a law on data protection that can be used against spamming, but it would make a lot more sense to have specific legislation, since Argentina is quickly becoming an international spamming haven," he said. At least two anti-spam bills were presented in Congress this year.

Other Latin American Anti-Spam Actions

Other nations in Latin America are also taking steps to combat the spread of unsolicited bulk e-mail. Recently, bills were introduced in Brazil, Chile, and Peru.

Last July, a judge in Colombia, based on the Habeas Data (right to information privacy) clause of the Constitution, ordered a company to stop sending unsolicited e-mails to a recipient who litigated. Colombian Judge Alexander Diaz Garcia of the Second Municipality Court in Rovira, Department of Tolima, ordered Virtual Card, an e-mail, multimedia, and e-business consultant firm, to stop sending unwanted mails to Juan Carlos Samper, who sued after repeatedly and unsuccessfully trying to opt out of Virtual Card's mailing list (Case No. 73-624-40-89-002-2003-053-00.)

In Brazil, by far the largest economy in South America, Sen. Helio Costa in August presented a Bill of Law under which companies would be allowed to send a spam message only once and would be required to disclose its subject matter and identify the sender's name and address in the body of the e-mail.

The bill, now under discussion at committee level, would bar firms from resending such messages without prior consent from the recipient. It would also give recipients the right to request Internet Service Providers to block unauthorized incoming messages within a 24-hour period.

At the same time, a series of Web sites and not-for-profit anti-spam groups are emerging, including Rompecadenas (http://www.rompecadenas.com.ar/index.htm) in Argentina and Anti Spam (http://www.antispam.org.br/) in Brazil, offering toolkits and tips to prevent bulk e-mail from inundating users' mailboxes.

But neither legislation nor kits will work without ISPs talking more solid action against spamming, Tanus argued. "The ISPs should block them. They are, after all, amongst the worst affected by spam."

Argentina's Law 25326 is available in Spanish at http://www.aaba.org.ar/ln25326.htm. An English version of Law 25326 is available from Privacy International, a London based human rights and privacy group at http://www.privacyinternational.org/countries/argentina/argentine-dpa.html.