"Judge Declares Spam Illegal in First such Ruling in Argentina". by David Haskel. (Reproduced with permission from Privacy & Security Law Report. April, 2006. Copyright 2006 by The Bureau of National Affairs, Inc.).

BUENOS AIRES-- A federal judge April 7 issued the first ruling declaring spam illegal in Argentina (Tanus Gustavo Daniel et al v. Cosa Carlos Alberto on Habeas Data, Fed. Civ. and Com. Ct., No. 1791/2003, Secretariat No. 6).

On Nov. 11, 2003 Judge Roberto Torti issued an injunction ordering the defendant, Carlos Cosa, to refrain from sending spam to plaintiffs Gustavo Tanus and Pablo Palazzi -two lawyers specializing on the Internet and data protection-- pending a final ruling on the case (2 PVLR 1344, 11/24/2003).

On April 7 the judge issued the verdict, enjoining the defendant to give plaintiffs access to their personal data, then remove the information from his database and refrain from using it. The plaintiffs made no monetary claims, but Torti ordered Cosa to foot the litigation bill, which he set at a total 8,232 pesos ($2,655).

That in itself can have a major deterring effect, Tanus said. "This ruling goes against the spamming industry," he told BNA April 25. "Spammers make money by charging their customers for mass advertising. But if they face the prospects of litigation, they'll think twice before embarking on it."

He added that now that there has been a ruling against spamming, it can serve as legal precedent for any future lawsuits against the practice of sending unsolicited mass advertisements on the Internet.

And while there were no fines involved in this case, Argentina's Personal Data Protection Act (Law 25326), which was enacted in October 2000 and on which the judge based his ruling, contemplates fines of up to 100,000 pesos ($32,260) for this kind of offense.

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.

Still, this legislation is not specifically designed for fighting spam. "It would make a lot more sense to have specific legislation, since spamming has risen dramatically over the past few years," said Tanus. He added there have been two anti-spam bills in Congress for a long time now without any visible action from lawmakers to take them to the floor for a vote.

By David Haskel

Judge Roberto Torti's ruling is available in Spanish at www.protecciondedatos.com.ar/resolucionspam.htm