is a large organisation, the pursuer or claimant may feel intimidated or consider that the case dynamics are weighed in favour of the spammer. The individual may wish to enlist the assistance of other aggrieved individuals or his Internet Service Provider. The Regulations do not provide for super-complaints. Super-complaints are complaints that can be initiated and undertaken by a consumer group or other organisation on behalf of an aggrieved group. However, certain organisations may be able to take action if they can show that they have also been affected by the actions of the spammer.
Enforcement Notices can be initiated either by the Information Commissioner himself or at the behest of OFCOM or of the person aggrieved and are independent of the private remedy of damages. The enforcement notice is considered by the Commissioner to be a remedy of last resort. The Information Commissioner will only serve a notice where the contravention has caused or is likely to cause damage to an individual. Thus, the serving of an enforcement notice is discretionary. Further, the notice will only be issued after the Commissioner has contacted the alleged offender. The Commissioner will endeavour to reach a friendly settlement with the alleged spammer. Only if these negotiations break down, will the Commissioner resort to the more formal stage of issuing an enforcement notice. Even here, however, issuance of the enforcement notice is not英语论文网 【http://www.51lunwen.org】 likely to be forthcoming since the alleged offender must receive a formal letter intimating the Commissioner’s intention to issue the notice and offering the recipient of the letter an opportunity to respond. The potential for delay is obvious and a serious dent to the enforcement armoury of the Regulations. Alleged spammers can continue to send e-mails for quite a considerable time before the enforcement notice is eventually issued, if at all.
The exponential growth in spam may create intolerable financial and human resource pressures for the Information Commissioner. It is reasonable to assume a concomitant rise in the amount of enforcement notices that require to be issued and an corresponding increase in the number of cases forwarded to the Commissioner by aggrieved individuals and OFCOM.
If the enforcement notice is issued and subsequently not complied with, the offender is liable, on summary conviction, to a £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. &
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