UK Internet & Email Laws



Under a new law, the UK has made sending spam a criminal offence. Since 11 December 2003, two new rules apply to e-mail marketing and The Privacy and Electronic Communications (EC Directive) Regulations 2003 states:

Use of electronic mail for direct marketing purposes

22. - (1) This regulation applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers.

(2) Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.

(3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where - 

(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;

(b) the direct marketing is in respect of that person's similar products and services only; and

(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.

(4) A subscriber shall not permit his line to be used in contravention of paragraph (2).

Use of electronic mail for direct marketing purposes where the identity or address of the sender is concealed

23. A person shall neither transmit, nor instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail - 

(a) where the identity of the person on whose behalf the communication has been sent has been disguised or concealed; or

(b) where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided.

The Data Protection Directive (European Parliament and Council, 1995)
European Parliament and Council (1995) 'Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Official Journal L. 281, November 23, at 3150.

The Telecommunications Privacy Directive (European Parliament and Council, 1998a)
European Parliament and Council (1998a) 'Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 Concerning the Processing of Personal Data and the Protection of Privacy in the Telecommunications Sector', Official Journal L. 24, January 30, at 18.

The Distance Selling Directive (European Parliament and Council, 1998b)
European Parliament and Council (1998b) 'Directive 97/7/EC of the European Parliament and the Council of 20 May 1997 on the Protection of Consumers in Respect of Distance Contracts', Official Journal L. 144, 4 June 1997, at 1027.

The Electronic Commerce Directive (European Parliament and Council, 2000)
European Parliament and Council (2000) 'Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market', Official Journal L. 178, July 17, at 116. df


Protection of Children Act 1978
The offence in section 1 of the 1978 states:

"It is an offence for a person -

(a) to take, or permit to be taken or to make, any indecent photographs or pseudo-photographs of a child;
(b) to distribute or show such indecent photographs or pseudo-photographs; or ........."

The section 7(7) of the 1978 Act gives a legal definition to the pseudo-photographs by stating:

"(7) "Pseudo-photograph" means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph."

The meaning of photograph and the introduction of "Pseudo-Photographs"
The definition of "photograph" given in section 7(4) of the Protection of Children Act 1978 did not include photographs in electronic data format and it was criticised by the Crown Prosecution Service in their evidence to the Home Affairs Committee. The response came in the Criminal Justice and Public Order Act 1994. Section 84(4) of the 1994 Act inserted a subsection (b) to section 7(4) of the 1978:

"(b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph."

The main purpose of section 84 was to deal with the so called "pseudo-photographs" of children. Pseudo-photographs are technically photographs but they are created by computer software such as MS Paintbrush or Picture Publisher by using more than one picture. For example a child's face can be superimposed on an adult body or to another child's body together with the alteration of the characteristics of the body. In the evidence given to the Home Affairs Committee, the case of Shakespeare was mentioned. In this case little girls' heads were put on to a pornographic adult body. Mr. Newell, Director of Casework stated that they were unable to prosecute in this case because the photographs involved were pseudo-photographs.

Section 160 of the Criminal Justice Act 1988
Under the section 160 of the 1988 Act:

"(1) It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.
(2) Where a person is charged with an offence under ss(1) above, it shall be a defence for him to prove -

(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time."

This offence is a serious arrestable offence with a maximum imprisonment term not exceeding six months. It has been successfully used in its new form in the recent cases of Sharp and Crumpton.

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