INTERNET LAW - Anti-Spam Law in Peru |
| Staff Attorneys, IBLS Editorial Board |  |
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| Peru passed Law 28493 on April 12, 2005, to regulate spam. The National Institute for the Defense of Competition and Protection of Intellectual Property (Indecopi- Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual) is the competent agency for enforcing the regulation. |
| Law 28493 (the Spam Act) was enacted on April 12, 2005, to regulate the use of unsolicited commercial e-mails, commonly known as spam. Supreme Decree 031/2005- MTC is the implementing regulation for the Spam Act, issued by the Ministry of Transportation and Communications on January 4, 2006. Indecopi is the competent agency for enforcing the Spam Act regulations. The Spam Act empowers the Peruvian Commission for Consumer Protection and Indecopi to set fines according to the law on consumer protection and the standard for advertising to defend the consumer.
Under the Peruvian Spam Act, spam is illegal if it contains false or misleading information, or if the sender of spam does not comply with opt-out requests. Practical application of the above provision includes situations when the spam contains a false name, identity information, or deceitful information in the subject field that does not coincide with the content, or if it was sent to the recipient more than two days after he or she made an opt-out request (Art. 5).
Unsolicited commercial, promotional, or advertising e-mails must include the word "advertisement" in the subject field of the message and must contain name, domicile, and e-mail address of the person or company sending the message, which the recipient can use to opt-out and avoid further advertisements from the sender.
The Spam Act gives e-mail users the right to reject or accept commercial e-mail. The user also can revoke the authorization for receipt, except when such authorization is an essential condition for the provision of e-mail service. The Spam Act does not specify whether the user has to grant his express authorization to receive spam (opt-in), or reject it once he has received it (opt-out). Internet Service Providers (ISPs) offering e-mail services must offer blocking systems and/or filters for the reception and transmission of unsolicited commercial e-mails through their company’s servers.
The recipient of spam can bring suit against the sender and request monetary compensation, which can be equivalent to one percent of a “tax unit” (UIT) for each of the illegal e-mails, with a maximum limit of two UITs (Art. 7). One UIT is equivalent to S$3,450; around US$1,100 as of December 2008).
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What is the scope of the Spam Act?
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The Spam Act concerns unsolicited commercial e-mails sent from or received in Peru. E-Mail is defined as every message, archive data, or other electronic information, that is transmitted to one or more persons via a network of interconnection between computers or any other equipment of similar technology. Information contained in the form of remission or annex accessible via direct electronic link contained within the e-mail is also considered to constitute electronic mail.
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Is all e-mail covered by the Spam Act, including private correspondence?
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No, the Spam Act only regulates unsolicited commercial e-mail. The Spam Act defines unsolicited commercial e-mail as every e-mail that contains commercial advertising or promotional information promoting the goods or services of a company, organization, person, or any other e-mail with lucrative purposes.
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Who can be held responsible for compliance with the provisions of the Spam Act?
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Under Art. 6 of the Spam Act, the following persons or companies may be considered responsible for illegal conduct under the Spam Act § 5: (1) Every person who sends e-mails which are unsolicited and contain commercial advertising; (2) companies or persons who directly benefit from the advertisements; and (3) the intermediaries of unsolicited e-mails, such as ISPs providing e-mail services.
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Are there criminal sections for spam?
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Yes, in addition to the Spam Act, the country's criminal code independently sanctions misleading and fraudulent conduct related to spam and its content. The fraudulent aspects of unsolicited messages are covered by provisions of the criminal code dealing with "Delitos informáticos" (cyber crimes), which include (1) manipulation of personal banking data, Criminal Code Art. 186; (2) utilization of a false identity for sending e-mails, Criminal Code Art. 161; and (3) misuse of credit cards, automatic teller machines as well as computer systems and services, Criminal Code Art. 207-A.
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Has Peru joined international efforts against spam activities?
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Yes, with regard to International Cooperation, the Asia-Pacific Economic Cooperation (APEC) Principles for Action against Spam, and the Implementation Guide Lines for Action Against Spam, were adopted by the 6th Ministerial Meeting on Telecommunication and Information Industry (TELMIN6), June 1- 3, 2005, on Lima, Peru.
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Links: Laws
Law No. 28493
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Links: Publications
Asia-Pacific Economic Cooperation (APEC) Principles for Action against Spam and the Implementation Guide Lines for Action Against Spam
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Links: Organizations
National Institute for the Defence of Competition and Protection of Intellectual Property (Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual—Indecopi)
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