Common use of Spam Clause in Contracts

Spam. As in the real world, junk mail has become a nuisance to users of the on-line world.144 Spam can be equated to the junk mail (messages) that we traditionally received by (1) post, (2) telephone (tele-marketing), and (3) fax.145 An insidious problem that only seem to proliferate, we note a 2008 research carried out by comScore M:Metrics, which showed that a quarter of all mobile phone users reported that they noticed an increase in unsolicited text (SMS) messages in 2007.146 The problem was particularly acute in France, where mobile spam increased by more than 60% in the last 12 months. We anticipate that there will be a steady rise in text (SMS) spam in correspondence with the rise in mobile messaging. This is confirmed in one other survey by Cloudmark, Inc. in 2008 which reported that users of text and multimedia messaging are encountering a corresponding increase in the number of unsolicited messages sent to their mobile devices.147 Data is revealing that mobile operators across Europe admit that up to 20 per cent of their users are affected by mobile (SMS) spam. This has led to two thirds of customers reportedly considering to leave their mobile network because of spam. We opine that the risk of mobile spam is significant. We see risk accurately expressed by ▇▇▇▇ ▇▇▇▇, head of techno- logy services with Cloudmark, Inc. 144 79% of respondents agree that spam costs significant time and money. Pew Internet survey reported in 2006, that 63% Internet users find that spam has made using the e-mail annoying and unpleasant. This is done from 67% in 2005. See also Nucleus Research: Spam costing U.S. businesses $712 per employee per year, April 2007; available at ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇. com/news/press-releases/nucleus-research-spam-costing-us-businesses-712-per-employee- each-year/ 145 Spamming is the activity of sending copies of the same message through the use of elec- tronic mails and SMS. The messages sent were neither requested by the recipient nor did the recipient consent to receiving them. Spam can be sent to newsgroups or to individuals. Newsgroup spamming involves sending an identical copy of the message to every news- group. It is also noted that the trend of using short message service (SMS) as a tool of trade is on the increase. See Young, D., How Spammers Are Targeting Mobile Phones In Asia, Technology-Reuters, February 2 2004 at ▇▇▇▇://▇▇▇▇▇.▇▇▇▇.▇▇▇▇▇.▇▇▇/news?tmpl=story&u =/nm/20040203/tc-nm/telecoms_spam_dc_1 146 ▇▇▇▇▇▇▇▇, ▇., (2008) Mobile phone spam on the rise, November 2008, The Telegraph, U.K.; available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇.▇▇/scienceandtechnology/technology/technology news/▇▇▇▇▇▇▇/Mobile-phone-spam-on-rise-study-finds.html. The research looked at the way people use their mobile phones in the UK, France, Spain, Germany and Italy. 147 Reading, D., (2008) Cloudmark survey: Operators ignore mobile spam, Security Dark Reading, December 15 2008; available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/mobility/security/ showArticle.jhtml?articleID=212500427 “As the problem grows beyond simple spam attacks to identity theft, phishing and fraud, customer safety will decrease, exacerbating dissatisfaction and churn. Without providing additional messaging security now, mobile operators will unnecessarily put their customers and businesses at risk”. Thus we do not view mobile spam as a passing phenomenon; instead we view mobile spam as a greater concern than on-line spam since the mobile phone has become a ubiquitous necessity.