Japan hits spam by the law

Japanese authorities sought to curtail proliferation of spam through the Law on Regulation of Transmission of Specified Electronic Mail (Law No. 26 of April 17, 2002), as amended by Law No. 87 of July 26, 2005 (the “Anti-Spam Law”). The content of this Japanese anti-spam law is similar to the United States CAN-SPAM Act of 2003. Consistent enforcement the Anti-Spam Law and imposition of fines have strongly supported Japan's anti-spam endeavors. Nevertheless, Japan’s residents are still suffering from spam messaging, due to a “loophole” in the Anti-Spam Law, which does not yet regulate spam sent via short message service ("SMS"); and due to other inventions and devices that spammers use to evade the Law, such as sending messages from personal computers that are not easily identifiable.

Spam messaging has become one of the most popular methods of advertising. The Ministry of Internal Affairs and Communication (“MIC”) is the authority enforcing anti-spam laws in Japan; while the Ministry of Economy, Trade and Industry (“METI”) enforces the consumer protection aspects found in the Anti-Spam and other national laws. Japan Anti-Spam Law applies to all commercial e-mail communications sent to residents of Japan, irrespective of the origins of the sender. The Anti-Spam law defines a “sender” as a for-profit organization or a person who is engaged in the business of sending e-mail messages to Japanese residents for purposes of advertisement or propaganda of commercial activities of their own or on behalf of others.

What are the main requirements for a solicitation e-mail not to be considered spam?

Not all e-mails containing advertising are considered to be spam under the Japanese Anti-Spam Law. Exceptions include: (a) when the recipient has explicitly consented to receiving e-mails from the sender; (b) when the recipient is in a business partnership with the sender or with the person whose product is being advertised; and (c) when the recipient is a person specified by law as a lawful recipient of such advertising e-mail.

Furthermore, any sender wishing to send unsolicited commercial e-mails may do so if the sender (a) honors the recipients’ requests to opt-out from the commercial message; (b) complies with the labeling requirements set out by the Anti-Spam Law; and (c) complies with Japanese regulations that prohibit the use of programs that generate fictitious e-mail addresses.


What penalties are prescribed by Law for violation of its provisions?

The Minister of Internal Affairs and Communication has the right to revoke a sender’s authorization to transmit e-mail messages to end-users for a specified period of time. The Anti-Spam Law also provides that when a sender ignores an order to cease transmission of spam, the sender “shall be guilty of an offense and liable to penal servitude for a term not exceeding one year or to a fine not exceeding one million yen, or to both.” In addition, METI publishes the names of companies and senders of spam who become subject to guidance orders; also, METI publishes the names of the companies and senders who become subject to penalties pursuant to the Law.
How does Japan address the transmission of spam messages through mobile phones?
The increased proliferation of spam messages transmitted through mobile telephones concerns Japanese authorities. Currently, the Anti-Spam Law only targets messages that are sent by e-mail. Therefore, Japan is exploring to extend its anti-spam provisions to cover SMS spam. Proposals for additional regulations are still in the planning stages and will be considered later in 2008.

Moreover, in accordance with the report of ChinaDaily.com, titled “Japan cracks down on junk e-mail, for example, the proposed revision of the Anti-Spam Law bans the sending of unsolicited advertising mail without prior consent of the recipient. It also requires senders to keep records of accepted mail. Maximum fines for offenders will be raised from the current 1 million yen to 30 million yen. In addition, the proposed rules will determine lawful methods by which advertisers may obtain e-mail addresses of customers and get them to consent to receiving advertising mail.