Drops responsibility onto its customers

Jul 29, 2009 12:08 GMT  ·  By

The Dutch Independent Post and Telecommunications Authority (OPTA) is holding Reinier Schenkhuizen, owner of an advertising company, responsible for the sending of at least 21 million spam emails. The Netherlands' telecoms regulator has ordered the alleged spammer to pay a fine totaling €250,000 ($353,750).

Schenkhuizen's company, called Serinco Benelux, owns a website named ADVERTERENisGRATIS.nl, which is advertised as an email marketing service. OPTA noted (translated from Dutch) that it had first contacted Schenkhuizen about violations of the anti-spam legislation back in March 2005. Because the warnings had no effect, in November 2007, OPTA investigators, along with law enforcement officials, searched his home and seized evidence.

The telecoms authority added that it had received a total of 379 complaints regarding the ADVERTERENisGRATIS service, which Schenkhuizen ran in several countries under similar names. Out of the total fine of €250,000, €150,000 are for sending unsolicited emails and €100,000 are for failing to include an unsubscribe option in the messages. An additional €5,000 would be added for every day if the spamming activity didn't stop immediately, OPTA noted.

In response, Schenkhuizen denied the accusations, and said that, "If users are commiting [sic.] fraud, then that is clearly not my responsibility." He claimed that his software product was not illegal and that he could not and should not be held responsible for how his customers chose to use it.

In 2004, Netherlands implemented the European Commission's Directive 2002/58/EC, which defined and prohibited email spamming. As with all directives, the EU member countries are given a specific set of principles they must strictly follow, and are left to decide the specifics of the new legislation for themselves. Because of this, while spam is defined the same everywhere in the EU, the legal repercussions for sending it might be substantially different from one country to another.

"As a small illustration of the variance in sanctions across Europe, in Italy convicted Spammers can face fines of up to €90000 and between 6 months and three years in prison. In the UK most successful prosecutions have been brought through the Small Claims Court, where fines are limited to the actual damage than can be proven to have been occasioned," Rik Ferguson, solutions architect at Trend Micro, notes.