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und;5,000 fine and in solemn procedure, to an unlimited fine.  If the majority of cases are brought in the magistrates’ court in England and Wales or in the Sheriff Court under summary procedure, then it has to be questioned whether the regime offers a sufficient deterrent effect. Commercial spammers will not be troubled too much by a £5,000 fine. In the case of Scotland, it would be desirable if Procurator Fiscals were minded to prosecute spam violations on indictment.           

A problem with this regime is the lack of criminal penalties per se for violating the Regulations. Criminal penalties are only available in response to a breach of compliance with an enforcement notice. The regime does not signify the correct level of social opprobrium. The creation of a criminal offence for direct violation of the Regulations, accompanied by a significantly higher level of punishment would concentrate the minds of spammers and send a message that society considers this activity particularly blameworthy. 

There are a number of similarities with the two regimes. The Federal Trade Commission and the Office of Fair Trading are both determined to improve the protection offered to consumers against the proliferation of spam. To this end, these two organisations, along with the United Kingdom Secretary of State for Trade and Industry, the United Kingdom Information Commissioner and the Australian Competition and Consumer Commission and the Australian Communications Authority have signed a Memorandum of Understanding on mutual enforcement assistance in commercial e-mail matters.  The memorandum provides for assistance between the organisations in providing or obtaining evidence that could assist in determining whether a person has committed or is about to commit a spam violation.  Participating organisations will use their best efforts to inform each other about spam violations occurring in the three territories.  The memorandum is designed to concentrate efforts on the most serious spam activities.  Part III of the Memorandum provides for requests for assistance. Each participant is under an obligation to inform the other participants of significant changes to the anti-spam laws of their territory. 

This memorandum is a useful starting point in the provision of mutual assistance in law enforcement for the suppression of spam. This model should be expanded to allow law enforcement agencies of other countries to request admission to the memorandum system. Spam is an international problem and a significant amount of spam originates from outside the territories of these three states, although it must be conceded that the United States is a significant spam producing country.  

A coordinated, internationally focused and holistic approach to the problem of spam is required. Legislation and law enforcement cooperation is required, but this alone will not minimise the proliferation of spam.

The effectiveness of anti-spam measures will increase when such action is combined with initiatives designed to foster best practice in industry and business, the development of new technological measures to counter spam and raising awareness of the issues with consumers.

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