The conviction of siblings Jeremy Jaynes (30) and Jessica DeGroot (28) in Virginia in the US on November 3rd for sending hundreds of thousands of unsolicited emails to subscribers to AOL, the internet service provider, set a precedent in the US's war against "spam" email, writes Richard Brophy

Jaynes and DeGroot made $24 million (€18.4 million) from selling worthless products such as internet history erasers and get-rich schemes through unsolicited mails.

In a landmark ruling, a Virginia court recommended a nine-year jail sentence for Jaynes and ordered his sister to pay a fine of $7,500. Sentencing will take place in February.

However, the siblings would still be sending bulk emails if their case had been heard in Florida, where spammers can act without fear of prosecution. Indeed, Virginia's anti-spam law, which bans sending emails using false email addresses, is the toughest in the US.

Unfortunately, the repercussions of this case will have little effect in Ireland, where businesses and individuals are bombarded with emails advertising get-rich quick schemes, herbal Viagra and interest-free credit.

"Irish law in this area couldn't be more rigorous, but the problem is that it's very difficult to prosecute spammers who are based outside the EU. It's unlikely that there will ever be a cohesive international law to clamp down on spammers in 'rogue' countries like Brazil or China.

"US spammers also use servers in these countries to send millions of emails through to avoid detection," says solicitor Mr Philip Nolan, who specialises in telecommunications law and is a partner at Dublin firm Mason, Hayes & Curran.

"It's a global problem and, like most criminals, the perpetrators of cyber crime are always one step ahead of the law," Mr Nolan adds. Although it can do little to stop unsolicited mail from outside the EU, Ireland, along with the other EU member-states, has cracked down on spamming at home. An EU directive on unsolicited email was transposed into Irish law and, under the Data Protection (Amendment) Act 2003, a spammer can now be fined up to a maximum of € 3,000 for each mail sent.

These tough measures have deterred spammers from using Ireland as a base: the Data Protection Commissioner, the body responsible for enforcing this law and prosecuting individuals who spam within Ireland, has not yet brought a case to the courts.

"We're investigating a number of cases that relate to SMS texts, but we haven't prosecuted anyone in Ireland for spam email," says Mr Tom McGuire, deputy data protection commissioner.

"Most spammers are based outside the EU, in places where there aren't tough laws and where we have no jurisdiction. There are initiatives by the US Department of Commerce and companies like Microsoft to catch the spammers and we work with the other EU member states. We are also about to sign an agreement with the other EU data protection commissioners to make inter-EU co-operation easier," he adds.

Ironically, Ireland's tough anti-spam laws have also had a negative impact on some legitimate Irish firms. Mr Philip Nolan says that marketing firms are "being stifled" because the legislation means they have to fulfil so many requirements. But Mr Tommy McCabe, director of employers' confederation IBEC's telecommunications and internet federation, believes that "any legitimate marketing company that uses text and email welcomes the law. They only want opt-in customers and spam certainly won't help their business."

Despite tough policing, spam remains a constant nuisance for Irish businesses. The Data Protection Commissioners estimate that 55-60 per cent of all emails sent to Irish companies are unsolicited and that 3 per cent of all emails sent to Irish accounts contain viruses.

Although there is increased awareness among businesses about unsolicited mail, Mr Fintan Lawlor, managing director of internet service provider Eircom.net, says that, on average, every Irish employee spends one week a year deleting spam email.

"That's a week that someone could spend on the beach or with their family," Mr Lawlor points out.

IBEC estimates that spam cost Irish businesses € 62.7 million last year and that this figure will rise if companies don't put anti-spam policies in place.

"Email is an essential communication tool for any business and there is a huge loss in productivity if workers have to delete mails as well as the costs involved for firms who have to implement anti-spam systems," says Mr McCabe.

"We recommend that every company adopts an email policy to make life more difficult for the spammers."

Mr McCabe also explains that there is anecdotal evidence some Irish businesses have been stung by get-rich-quick spam, while Mr Lawlor believes that spamming may eventually lead to a loss of consumer confidence among internet and email-users.

"It's the biggest issue: spam has been infiltrated by a criminal element and you can track it down to a core group of about 200 around the world," he says. "They often hijack a firm's computers and servers to send mail from, ruining the company's reputation in the process.

"There are some sophisticated, cheap services to block spam, but ideally, we would like to see more spammers sent to jail," Mr Lawlor adds.