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).
