Provide spam opt-in wording on site II
Thread poster: Samuel Murray

Samuel Murray  Identity Verified
Netherlands
Local time: 05:08
Member (2006)
English to Afrikaans
+ ...
Dec 11, 2009

G'day everyone

I wish to reopen my previous thread, which seems to have been ignored by Staff and did not garner much of a response from members:

http://www.proz.com/topic/135868

Background:

European spam laws are quite strict these days, and basically any commercial message sent electronically by anyone in Europe to anyone else in Europe requires explicit, informed prior consent of the recipient. Any translator in Europe who sends an e-mail (even via ProZ.com's private message system) to a European ProZ.com user/member offering them his translation services, is breaking the law, unless the translator can prove that he has explicit, informed permission from that person to send him such mails.

Invalid arguments:

The argument that ProZ.com is in the USA is irrelevant -- in Europe, the question that determines the legality of commercial e-mails is not where the sender or the intermediary sender is located, but where the recipient is located.

The argument that since messages are relayed via ProZ.com, therefore ProZ.com is the actual sender is also invalid, because both the actual sender (i.e. by this line of thinking, ProZ.com) and the person who authorised the mail to be sent (i.e. the translator) are liable.

The argument that listing one's e-mail address on one's profile is implicit permission to anyone to send you commercial mail is also invalid, for European law requires explicit permission. The fact that one's contact details are listed in a business directory or on the front door of your business premises is deemed to be for informational purposes only and does not constitute permission by the recipient to be sent commercial messages. In fact, if someone in Europe hands you his business card (with his e-mail address on it) then you may not send him an e-mail to advertise your services (although you may send him an e-mail to ask about his).

What is required:

So, it is quite important that ProZ.com provides its members who are potential outsourcers with a mechanism to explicitly grant permission on their profile pages to visitors, site users and other site members to contact them to offer them their services.

Having looked at the information available to me, I have found that the suggestions that I made in my previous thread may actually not be sufficient. It is not sufficient that a message is written on one's profile page that you give potential subcontractors permission to contact you. It is not sufficient that the permission clause is buried somewhere in ProZ.com's membership policy. What is required is that members who want to be contacted indicate this using a tick box when editing their own profiles.

Suggestion:

On the profile editing page, on the contact details section, there should be a tickbox (unticked by default) with the words "I hereby grant permission for any site visitor to contact me via ProZ.com or via the contact details that I provide on my profile page, for any commercial purpose that relates to anything on my profile page."

This wording should also be located somewhere on the person's public profile page, although I suggest that it be hidden away in the alt-text of a image, so that it is present but does not look like an encouragement to send spam.

Samuel (busy emigrating to Europe)

Edited to fix URL.



[Edited at 2009-12-11 11:12 GMT]


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paula13  Identity Verified
Argentina
Local time: 00:08
Member (2005)
Playing the devil's advocate... Dec 11, 2009

Hi Samuel!

I’m not one to play the devil’s advocate (especially because I’m overall unhappy with the way the site has been handling certain issues lately), but as a third year Law student what I can tell you is this:

1) The argument that Proz is in the US is extremely relevant from both a legal and logical point of view.

Legal: the nature of our user agreements. Our user agreement is an adhesion contract (i.e. one of the parties, in this case Proz, sets all the terms and conditions and all the other party can do is accept or reject) and our user agreement is subject to the laws of the United States of America and the State of Delaware. This is something we all accept when we become members. http://www.proz.com/?sp=user_agreement

Logical: The reason why Proz is legally entitled (and in some cases obligated) to set a jurisdiction for solving legal issues is because they are providing a service to people all over the world. It would not be possible for Proz to subject itself to the laws and regulations of every single country in which their users are located, simple because each country has different laws and sometimes these laws contradict each other. Therefore, for practical reasons, contracts are bound to one jurisdiction. This does not mean, however, that certain laws in some countries don’t create a legal framework that would allow you to take legal action against Proz from your own country… but that’s a whole other story.

2) The argument that since messages are relayed via ProZ.com, therefore ProZ.com is the actual sender is also extremely valid because Proz becomes legally responsible for those messages.

3) “The argument that listing one's e-mail address on one's profile is implicit permission to anyone to send you commercial mail is also invalid, for European law requires explicit permission.” That may be true, but your contract is subject to the laws of the US.

Of course, I still have a long way to go before I actually become a lawyer and there might be important issues that I'm ignoring. However, to the best of my knowledge with everything I've learned in Law School so far, they don't seem to be breaching any contracts or breaking any laws.

Best,
Paula


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Jared Tabor
Local time: 00:08
SITE STAFF
ProZ.com privacy policy and adherence to the TRUSTe privacy program Dec 11, 2009

Hello Samuel, Paula,

You are probably aware of ProZ.com's privacy policy, and the site's adherence to the TRUSTe Privacy Program; you can see this at http://www.proz.com/privacy

ProZ.com complies with the EU Safe Harbor framework as set forth by the U.S. Department of Commerce and the European Union regarding the collection, use, and retention of data from the EU.

ProZ.com's practice is to have standards that are at least the level of the strictest standards for all areas in which the company operates and in which members live.


I'd also like to take the opportunity to point out forum rule http://www.proz.com/siterules/forum/10#10 regarding legal interpretations made in the forums. I'm sure you understand that the reason behind this rule is to avoid the forums being used to provide legal interpretations, much in the same way the forums would not be best used for offering "official" medical advice, etc. Thanks for your understanding and cooperation.

Regards,

Jared


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Laurent KRAULAND  Identity Verified
France
Local time: 05:08
French to German
+ ...
Basic solution... Dec 11, 2009

I have my ProZ.com emails vetted by the staff before I receive them in my inbox - seems to help a lot. So I basically allow the whole wide world to send me emails, with the reservation that spam-like emails will be removed without previous notice.

I know that this does indeed not answer all of Samuel's questions, but found it to be a convenient way to get rid of unsolicited messages.

[Edited at 2009-12-11 13:40 GMT]


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Samuel Murray  Identity Verified
Netherlands
Local time: 05:08
Member (2006)
English to Afrikaans
+ ...
TOPIC STARTER
@Jared Dec 11, 2009

Jared wrote:
You are probably aware of ProZ.com's privacy policy, and the site's adherence to the TRUSTe Privacy Program. ... ProZ.com complies with the EU Safe Harbor framework as set forth by the U.S. Department of Commerce and the European Union regarding the collection, use, and retention of data from the EU.


I'm happy to hear and to be reminded of the fact that ProZ.com takes privacy seriously, but my suggestion has nothing to do with privacy.

ProZ.com's practice is to have standards that are at least the level of the strictest standards for all areas in which the company operates and in which members live.


Then I would encourage you to investigate this issue and get legal advice about it. I'm sure many freelance translators on ProZ.com use the Blue Board or the site directories to find potential clients, and the issue I raise here has implications for those freelance translators.

I'd also like to take the opportunity to point out forum rule http://www.proz.com/siterules/forum/10#10 regarding legal interpretations made in the forums.


I understand, and it was not my intention to provide a legal interpretation to readers of this forum, but to point out a possible legal problem with ProZ.com itself, hopefully to be investigated by ProZ.com. My responses to other people in this thread would also not be intended as legal advice, although I might attempt to point out logical errors in what respondents have to say.


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Samuel Murray  Identity Verified
Netherlands
Local time: 05:08
Member (2006)
English to Afrikaans
+ ...
TOPIC STARTER
@Laurent Dec 11, 2009

Laurent KRAULAND wrote:
I basically allow the whole wide world to send me emails, with the reservation that spam-like emails will be removed without previous notice.


The problem with many kinds of discussion about spam is that they stand or fall by the definition of spam.

When you say "spam-like" I assume you refer to e-mails trying to sell you products that have nothing to do with translation services. I myself would not mind receiving e-mails from people who try to sell me things if those things are related to business, and I would not regard such e-mails as spam. Unfortunately quite often regulations about spam do not define spam as "mail that is annoying" or "mail that is irrelevant to you" but often simply as "mail of a commercial nature that you did not request".

I know that this does indeed not answer all of Samuel's questions, but found it to be a convenient way to get rid of unsolicited messages.


I just want to make sure that my request or suggestion is not misunderstood: the purpose of my suggestion is not to protect site members against spammers, but to protect "spammers" (you and I, as freelance translators) against site members.

Let me explain some of my concern by way of an analogy. I'm sure anyone who chats on mailing lists on the internet have experienced it when some clueless guy subscribes to the list and then complains about all the mail they receive. Such people can be very obnoxious towards other members of the list whom they perceive to be "sending them a lot of unsolicited mail". These clueless people then sometimes go out of their way to "punish" or make life difficult for the people whom they perceive to have sent them mails.

A similar situation may occur on ProZ.com, whereby someone creates a profile for themselves (e.g. to be able to ask 5 KudoZ questions per day) but not realise that this might cause them to receive offers from freelance translators by mail. If such a clueless person is in a country with a spam regulating body (such as OPTA in the Netherlands), he could report these mails to them, and if the freelancers who sent the mails are in Europe, they could get into serious trouble.


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Samuel Murray  Identity Verified
Netherlands
Local time: 05:08
Member (2006)
English to Afrikaans
+ ...
TOPIC STARTER
@Paula Dec 11, 2009

paula13 wrote:
...as a third year Law student what I can tell you is this:


Like Jared had said, we should refrain from giving legal opinions in the forums. I would, however, like to point out some logical errors in what you're saying, and comment on a few of the things you mention.

Our user agreement is an adhesion contract (i.e. one of the parties, in this case Proz, sets all the terms and conditions and all the other party can do is accept or reject) and our user agreement is subject to the laws of the United States of America and the State of Delaware.

... It would not be possible for Proz to subject itself to the laws and regulations of every single country in which their users are located, simple because each country has different laws and sometimes these laws contradict each other. Therefore, for practical reasons, contracts are bound to one jurisdiction.


My suggestion is not made because I'm afraid that ProZ.com might be breaking a law. I'm not saying that ProZ.com is doing anything illegal. Nor am I suggesting that ProZ.com should subject itself to laws from other countries. I'm simply requesting that ProZ.com makes a small change to its procedures that will help protect its users in Europe.

The argument that since messages are relayed via ProZ.com, therefore ProZ.com is the actual sender is also extremely valid because Proz becomes legally responsible for those messages.


Whether ProZ.com does or does not become legally co-responsible for the messages sent through ProZ.com is not relevant here, as the original sender remains responsible for the messages that he sends.

3) “The argument that listing one's e-mail address on one's profile is implicit permission to anyone to send you commercial mail is also invalid, for European law requires explicit permission.” That may be true, but your contract is subject to the laws of the US.


The contract that users have with ProZ.com is not relevant here, because people from other countries can't remove themselves from the jurisdiction of the laws of their own countries (regardless of what contracts they sign in other countries).


[Edited at 2009-12-11 15:00 GMT]


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LEXpert  Identity Verified
United States
Local time: 22:08
Member (2008)
Croatian to English
+ ...
@ Laurent - "Vetted by the staff"? Dec 11, 2009

Laurent KRAULAND wrote:

I have my ProZ.com emails vetted by the staff before I receive them in my inbox - seems to help a lot. So I basically allow the whole wide world to send me emails, with the reservation that spam-like emails will be removed without previous notice.


Laurent,
What exactly does that mean? Is it some kind of option to set in our profiles?


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Laurent KRAULAND  Identity Verified
France
Local time: 05:08
French to German
+ ...
My point of view Dec 11, 2009

Rudolf Vedo CT wrote:


Laurent,
What exactly does that mean? Is it some kind of option to set in our profiles?

Yes - you have that option.

@ Samuel:

1) Any ProZ.com profile provides enough options to receive or to block emails, no matter where they come from. We have this choice and therefore should make use of it (plus the vetting option I wrote about).

2) Furthermore, and as we are dealing with a professional website, I think that someone (freelancer or outsourcer) allowing the sending of emails should expect to be receiving some post.

3) There is indeed some difficulty defining what a "spam" is and here too, we should allow common sense to rule. As an example, I would say that the wording in emails also has some importance, together with their frequency.

4) As per reporting alleged spams, I would be careful - as this accusation may be turned against the person who complains that they receive spams.

So much for now.

[Edited at 2009-12-11 15:47 GMT]


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Laurent KRAULAND  Identity Verified
France
Local time: 05:08
French to German
+ ...
Vetting option Dec 11, 2009



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Post removed: This post was hidden by a moderator or staff member because it was not in line with site rule

Samuel Murray  Identity Verified
Netherlands
Local time: 05:08
Member (2006)
English to Afrikaans
+ ...
TOPIC STARTER
@Laurent (second try) Dec 14, 2009

My previous post was deemed in violation of the forum rule about legal discussions, even after I trimmed it, so I'll try again and hopefully this reply of mine is within the forum rules.

Laurent KRAULAND wrote:
1) Any ProZ.com profile provides enough options to receive or to block emails, no matter where they come from. We have this choice and therefore should make use of it (plus the vetting option I wrote about).


The options on an outsourcer's profile to receive e-mail does not explicitly mention what kinds of messages he gives the sender permission to send him. That is my point.

The fact that anyone can send an outsourcer a message does not mean that he will appreciate any kind of message. The rules about sending messages are buried deep in ProZ.com's site rules where he can claim to have missed it.

And the fact that an outsourcer can block certain types of messages does not mean that anyone has an implied permission to try to send any kind of message.

2) Furthermore, and as we are dealing with a professional website, I think that someone (freelancer or outsourcer) allowing the sending of emails should expect to be receiving some post.


Yes, but I think you're making a very serious logical error here. There is a big difference between customers and suppliers. The fact that potential suppliers welcome messages from potential customers does not mean potential customers would welcome messages from potential suppliers.

It is expected that potential customers could contact us via our profile pages -- that is what the profiles are there for after all. But the fact that I have provided my contact details for potential customers to contact me about my products does not necessarily mean that I would want other suppliers to use those same provided contact details to send me information about their products.

3) There is indeed some difficulty defining what a "spam" is and here too, we should allow common sense to rule. As an example, I would say that the wording in emails also has some importance, together with their frequency.


There is a time and place for common sense when talking about spam. Let's say you're using an internet cafe or ISP to send your mail (or someone uses an internet cafe to send you mail), and that internet cafe or ISP has a clear definition of spam (even if it is a weird definition of spam), then when someone wants to accuse you of spam (or the other way round), then that internet cafe's or ISP's definition of spam will be one that determines your guilt or innocence (and your s "common sense" may not come into play).

If some organisation's definition of spam is "unsolicited electronic message of a commercial, charitative or ideological nature for which the recipient has not explicitly and informedly given permission and about whose topic there is no pre-existing relationship between the sender and recipient", then it doesn't matter how non-irritating, non-frequent or non-spamlike the message is for that organisation to determine (for users who are members of that organisation) whether it is spam or not.

4) As per reporting alleged spams, I would be careful - as this accusation may be turned against the person who complains that they receive spams.


If I complain directly to the spammer, then it is possible that the spammer may try to do me harm. But if I complain to an anti-spam organisation, who in turn complains to the spammer (and takes legal action against him), the spammer won't be able to harm me in any way that matters.

Well I hope there is no legal advice in this reply this time...


[Edited at 2009-12-14 14:17 GMT]


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