RE: [Asrg] Implicit Consent (was: Another criteria for "what is spam"...)

At 13:53 5/06/03 -0600, Richard Johnson wrote:
>I believe there is no way to safely manage "implied consent" for BE
>streams.  Consent for such needs to be explicit.

I would go further and say that rather than logistical difficulties, there 
is never implied consent for bulk email. The reason for this is that it's 
simply not necessary to have implied consent for bulk email in the cases 
where it is suggested that implied consent might exist. In those cases, 
there is already a 1:1 communication stream underway. This means that the 
potential sender has an opportunity to seek explicit consent. Failure to do 
so is done out of either (a) laziness; or (b) a failure to care about 
whether there really is consent. In fact if you're assuming consent in such 
cases, you know that as part of your operation you will be hitting, people 
who do not consider there to be implicit consent.

As I have mentioned before, consent is a legal concept, and being a legal 
concept there are some broad guidelines for how to determine when consent 
it implied. If you're interested in this in more detail, I would recommend: 
Young P, "The Law of Consent", Law Book Co, Sydney, 1986. Although this 
book is not exhaustive of the concept, it's the closest thing I've found to 
a canonical discussion of the issues of consent.

One survey in 2000 (<http://businessweek.com/2000/00_12/b3673010.htm>, see 
under heading "ONLINE BUYERS DREAD JUNK MAIL") pegged the number of users 
who do not regard a pre-existing relationship as giving consent to 
marketing material at 78%. The figures have increased over time, so the 
position that pre-existing relationships mean implied consent for bulk 
email reflects neither a practical necessity nor the views of the people 
who are receiving the bulk email (and it is their views that matter for the 
question of the existence of implied consent, not the desires of the vendors).

Even if the figures were turned around, you couldn't really claim implied 
consent. Implied consent would only arise where no reasonable person would 
regard the communication as not requiring implied consent. You'd have to 
either get the numbers of people who object to this practice down to 
something under 5%, or demonstrate that there is something in the 
circumstances that makes their view unreasonable. The fact that the 
contrary behaviour is normal practice of vendors does not make the view 
unreasonable.
--
Troy Rollo				Chairman, CAUBE.AU
asrg@troy.rollo.name			Executive Director, iCAUCE

_______________________________________________
Asrg mailing list
Asrg@ietf.org
https://www1.ietf.org/mailman/listinfo/asrg