Despite the introduction of the opt-in/opt-out principle, spam is still very present in our e-mail inboxes. The French Law for Confidence in the Digital Economy – LCEN – is one of the ways in which users and Internet service providers – ISPs – can take legal action against spammers. However, the steps involved are not always easy.
Remedies available to ISPs
Mass spamming causes considerable damage to Internet service providers. Not only does spam clog up the network, it can also lead to a significant loss of customers. To avoid all these inconveniences, these professionals do not hesitate to mention the ban on spamming in their subscription contract. There are also legal remedies available to ISPs.
Limitation of legal recourse in France
There are few legal proceedings for spamming in France. On the one hand, the rate of illicit mail leaving the country is low compared with the global volume. On the other hand, current legislation does not allow ISPs to take legal action despite the damage they have suffered. Even to close an account, the reason must be established, such as a violation of the general terms and conditions of use.
ISPs win case against spammers
Despite the difficulties, the ISPs were able to win their case before the relevant courts. In 2001, a professional was able to terminate a subscription contract for proven spamming on the basis of netiquette and article 1135 of the French Civil Code. The customer’s case was dismissed by the Rochefort-sur-Mer Regional Court.
In 2004, the Paris Commercial Court also authorized the immediate closure of a customer’s account without notice due to a significant breach of contract. He was caught in the act of mass spamming his e-mail address, an activity prohibited by the ISP’s general terms and conditions of use.
Spammers intent on deliberately damaging the operation and computer facilities of Internet service providers will be liable to penalties and damages under article 323-2 of the French Penal Code. In general, the severity of penalties will depend on the nature of the offence. For fraudulent, illicit or unfair collection of personal information with the aim of using it, the spammer risks 5 years’ imprisonment and a fine of 300,000 euros. For spamming causing system disruption, the penalty is 1 to 3 years’ imprisonment plus a fine of 15,000 to 30,000 euros.