Today the Maritime and Commercial Court in Copenhagen rendered a judgment on what it should cost the Danish telecom supplier Debitel to send unsolicited marketing messages by email and SMS to roughly 48,000 recipients without having obtained prior consent. Further, the judgment also took into consideration that Debitel had discredited other traders and their enterprises as well as used unfair statements to the detriment of consumers, trade and business alike. The Court found that DKK 2,000,000 (€270,000) was the price to pay.
The legal proceedings, with the Danish Consumer Ombudsman acting on behalf of the prosecution, were instituted in the spring of 2003, following Debitel’s bulk distribution of unsolicited email and SMS marketing communications.
The prosecution service alleged that the Danish Consumer Ombudsman as well as the legislature called for a more uniform and stringent punishment to set a tough standard in relation to violations of the Danish Marketing Practises Act. A fine of DKK 400,000 was meted out in the latest anti-spam case.
The judgment ruled that by "electronic mail" is meant all types of messages sent electronically. Not specifying the means of communications, "electronic mail" applies to all existing – and future - technologies used for distribution of electronic communication. This regardless of whether they are known as email, voice message, video message, MMS, SMS or something else, and whether partly or fully transmitted by means of land-based or airborne communications networks.
On meting out the sentence the Court stressed the number of unsolicited enquiries, the nuisance caused by the spam, the affairs of the supplier and the number of complaints. Further, the Court made a point of the defendant’s quick withdrawal of the advertising campaign following the DCO intervention, and the fact that the wronged traders did not themselves raise any claims in connection with the unfair marketing activities.
"We are satisfied with the judgement which once and for all hammers home the fact that the ban laid down in the Danish Marketing Practises Act applies to all means of electronic communications technologies - whether of today or tomorrow. The case demonstrates that hefty fines await Danish spammers. And lastly, the judgment clearly states that unfair marketing practises, whether encountered by consumers, trade or business, are unacceptable," concludes the Danish Consumer Ombudsman Hagen Jørgensen, who has more anti-spam cases coming up.
Debitel has informed the press that they, due to the size of the fine, intend to appeal against the Maritime and Commercial Court’s decision and try the case before the Supreme Court.
Section 6a of the Danish Marketing Practises Act makes it an offence to distribute marketing material by means of electronic mail, automated call systems or fax without prior consent. Moreover, sections 2(2) and 2a of the above Act prohibit improper indications or statements relating to other traders or consumers.
Want to complain about spam?
The DCO has set up two electronic spam mailboxes, one for cross-border spam, firstname.lastname@example.org, and one for Danish spam, email@example.com.