Subject: Re: re current thread

From: ColorNet Robin <[email-masked]>
Date: Wed, 22 Sep 1999 22:09:12 +0200

>>this falls also under the area of ISTF mission.  With respect, the 23
>>pages of the RFC if it stands as is through IESG will be laughed out of
>>court by merchants.  That in itself is anecdotal.  What is important that
>
[email-masked] a écrit:
>Do you really mean "court" as in court of law?  If so, I would expect
>it to be laughed out of court as it is not a legal document and is not
>intended to be.  If you meant that merchants will ignore the tips
>contained in the doc, that is quite quite possible and something we
>discussed before deciding to write the document.  However, it was felt
>that it would be more constructive to have some positive suggestions
>on record than to have only negatives.  People may use it or not as
>they will.  We were not so ambitious as to assume that this doc would
>have the force of ANY SORT of regulatory or legal statement and we do
>NOT wish to make it do so!
Thank you April, for the time taken in replying.

Effectively I was playing on what the japanese call a pillow word or pun.
Although the document may not be intended to
>have the force of ANY SORT of regulatory or legal statement
 as can be seen by the recent Ontario precedent quoted below, ISOC  and
IETF documents and potentially ISTF statements in that they fall into the
common body of experience/interchange or in some ways common law are
increasingly being used as convenient pegs to hang legislation on.

Although you may be correct in stating "I would be stunned if the IETF
gave a fig about whether it were ignored in societal matters.  :-) " you
may be equally stunned if European Legislation took certain statements as
its justification for opinions or precedent that in your mind are "out of
court". This "caught" my attention as I parachuted down and perhaps I was
wrong to focus on areas which had been previously excluded in the minds of
all who have put a considerable amount of work into the document as it
stands.

In my mind, following last Monday's GPH meeting in Paris, there are two
short term milestones.  First of all the European meeting on SPAM on 28th
September. Secondly the parliamentary Internet and the Law Conference on
October 5th.  If concensus feels that these are irrelevant then my
objections are misplaced.  IMHO that the European legislator is looking
towards ISOC (or what it sees as ISOC in the sense of a "legitimate"
representation of Netiquette and the Internet Community) which in this
case could be taken to mean the document, and I just hope that nobody will
be "caught" on the hop :=)

FRENCH COMMENTS ON CANADIAN NETIQUETTE PRECEDENT

Enfin, la juge Janet Wilson n’hésite pas à déclarer que la société
défenderesse a agi en violation des termes du contrat, dans la mesure ou
ce dernier renvoie la partie cliente au respect des principes de la "
Netiquette ". Ainsi, la pratique du spamming, au mépris de la déontologie
en vigueur sur le Réseau, a justifié la déconnexion du site Beaverhome.com.

" 31 (…) I conclude that sending unsolicited bulk commercial e-mail is in
breach of the emerging principles of Netiquette, unless it is specifically
permitted in the governing contract. As the rules of Netiquette govern the
parties' Contract, the plaintiff is in breach of its terms justifying
disconnection of service. Secondly, in the alternative, Nexx is permitted
to add terms to the Contract precluding a Nexx client sending unsolicited
bulk e-mail directly, or through a third party. If the plaintiffs do not
concur with the new term, they are entitled to a rebate of the pro-rated
balance of the Contract price, and the defendant is entitled to disconnect
service. The defendant has agreed to repay the prorated balance owing
under the Contract from April 5, 1999 to August 5, 1999. "

Notons qu’au Québec, la " Netiquette " pourrait s’imposer aux
cocontractants, même en l’absence de clauses y faisant expressément
référence, sur la base de l'article 1434 du Code civil : "Le contrat
valablement formé oblige ceux qui l'ont conclu non seulement pour ce
qu'ils y ont exprimé, mais aussi pour tout ce qui en découle d'après sa
nature et suivant les usages, l'équité ou la loi".
L.T.

Références :
 http://legal.web.aol.com/decisions/dljunk/nexxorder.html ;
............................................................
AUSTRIAN LAW amendment
http://www.euro.cauce.org/fr/countries/c_at.html):
§ 101. Unsolicited Calls
Calls - including the sending of telefaxes - for advertising purposes
without the prior consent of the subscriber are not permitted. The consent
of any one person authorised by the subscriber to use that subscriber's
connection is of equal standing. Consent can be revoked at any time; the
revocation of such consent has no effect on contractual relations with the
party to whom consent had been given.
Sending of email in bulk or for advertising purposes requires the prior -
revocable at any time - consent of the recipient.
...
§ 104.
(3) An infraction subject to a fine of up to 500,000 ATS (EUR 36,330 or
USD $37,060) is committed by anyone who... contrary to § 101 makes
unsolicited calls or sends bulk or advertising email.
(19990719)