Hi Matthias > > Therefore, the sender must be identifiable. If the sender is not > > identifiable, the ISP of the sender must provide the identity of the > > sender. > > On what legal theory is this based on?
I am not a lawyer, but in my job I had some contacts with OFCOM, SECO, Lauterkeitskommision etc. about similar issues. So this is derived from the information I got from them. > > Art. 8 Right to information > > https://www.admin.ch/opc/en/classified-compilation/19920153/index.html#a8 > > <https://www.admin.ch/opc/en/classified-compilation/19920153/index.html#a8> > > The best course of action you may find here is to define the provider > as the „controller of a data file“, if he will not identify the > actual controller to you. At most, you will get the information about > when your email address was added to the providers’ database. This article concerns the controller of the data file (the email addresses database). So the customer of Mailchimp, not Mailchimp them self. So there must be a way to contact the customer of Mailchimp. > > Art. 82 Communication of data to identify nuisance calls and unfair > > mass advertising > > https://www.admin.ch/opc/en/classified-compilation/20063267/index.html#a82 > > <https://www.admin.ch/opc/en/classified-compilation/20063267/index.html#a82> > > This only applies to telecommunications services providers as defined > in ordinance (and the telecommuncations law). OFCOM has a list of all > registered telecomuncations services providers. It does *not* apply > to anybody else. Yes, this is a gigantic loophole, and I spoke out > against it during the consultation process. But you can’t just make > up stuff. No, according to information I got from the OFCOM legal department, this applies to any service provider who sourced the communication in question. In case of telephone calls, this applies to the TSP who originated the call and all others in between, should the originating TSP not be identifiable because the CallerID has been faked. In case of IP Communication this applies to the ISP in control of the source IP of said communication. Could you please state where you got your information from? > > Bundesgesetz gegen den unlauteren Wettbewerb (unfortunately not > > translated by admin.ch) > > https://www.admin.ch/opc/de/classified-compilation/19860391/index.html > > <https://www.admin.ch/opc/de/classified-compilation/19860391/index.html> > > The unfair competition law (Art 3 lit o and s) is nice, but hardly > relevant. A single spam(mer) will usually not pass the threshold of > „to threaten the economic well-being“. Yes, another gigantic > loophole. The list under Art 3 are, as I understand, a list of cases where the circumstance of "unfair competition" is given. In case of advertisement emails sent without consent of the recipient and without proof of previous business relationship. I think Art 3 lit o is fulfilled. > Even leaving jurisdiction issues aside, you will have a hard time to > legally force a provider to reveal the identity of the spammer. I’m > sorry that I don’t have better news. Within Switzerland, I got some success. Sometimes I have to tell the service providers to consult ofcom or the 'Lauterkeitskommision' and then I get the data requested. With TSP Germany and some international telephone carrier I also have some success tracking abusive calls back to the source. With ISP in Germany and France I got some success getting the identity of repeating spamers. Well they mostly didn't try to hide too hard and were just cases of 'I bought your address from eBay and the seller told me they are guaranteed opt-in'. In some cases this gave the ISP a reason to disconnect their customer without fearing him taking legal actions against them, because their customer acted against their anti-spam policy. But right, eBay also refuses to tell who their customers are. Still I feel massmailing companies like Mailchimp could do more to prevent spam. Like just the small alterations to their policy. -Benoît Panizzon- -- I m p r o W a r e A G - Leiter Commerce Kunden ______________________________________________________ Zurlindenstrasse 29 Tel +41 61 826 93 00 CH-4133 Pratteln Fax +41 61 826 93 01 Schweiz Web http://www.imp.ch ______________________________________________________ _______________________________________________ mailop mailing list mailop@mailop.org https://chilli.nosignal.org/cgi-bin/mailman/listinfo/mailop
