What is spam?

Spam is the term commonly used to describe electronic ‘junk mail’ or unwanted messages sent to a person’s email account or mobile phone.

Legislation relating to spam came into effect on 10 April 2004. The Spam Act, 2003 (Cth) makes it illegal to send, or cause to be sent, ‘unsolicited commercial electronic messages’ that have an Australian link.

 

The Spam Act, 2003

The Act was introduced in response to growing business and community resentment in respect of unwanted email messages sent out by spammers causing significant inconvenience to both individuals and businesses.

The Spam Act covers electronic messages which includes, emails, mobile phone text messages (SMS), multimedia messaging (MMS) and instant messaging (iM), of a commercial nature but does not cover voice, facsimile or other paper based communications.

The Act prohibits a person from sending out a commercial electronic message with an Australian based link unless they have the recipient’s consent.

Broadly, a message has an ‘Australian link’ if it either originates or was commissioned in Australia, or originates overseas but has been sent to an address accessed in Australia.

Consent requirement

The intended recipient’s consent can be given expressly, or inferred from conduct or inferred from the nature of the relationship between the sender and the recipient.

Content requirements

In addition to consent, certain content requirements must also be met to avoid breach of the Act.

The individual or organisation authorised to send the message must be clearly identified and accurate information about how the recipient can readily contact the sender must be provided.

The message must also include a clear and conspicuous statement that clearly demonstrates how the recipient can unsubscribe from any further commercial electronic messages sent from that individual or organisation.

Harvested addresses

The Act specifically prohibits the supply, acquisition and use of address-harvesting software and the use of addresses obtained through address-harvesting software. It will be important to pay particular attention to any list of addresses obtained from third parties to ensure it has not been compiled using address-harvested software and avoid breach of the Act.

Consequences of spamming

The legislation sets out significant penalties of up to $1.1 million a day for repeat corporate offenders.

Recently, the Federal Court fined Clarity1 Pty Ltd ( ACMA v Clarity1 Pty Ltd [2006] FCA 410.) and its managing director a total of $5.5 million for breaches of the Act. This penalty was the first successful prosecution by the Australian Communications and Media Authority (ACMA) under the Act since it commenced.

Justice Nicholson found that during a three-day period, Clarity1 sent more than 270 million illegal commercial electronic messages to more than seven million unique electronic addresses. It was also revealed that Clarity1 continued to dispatch these messages at the same rate for over a year. Because each message was sent without the consent of the recipient, the Court held that each commercial electronic message was a contravention of the Act.

In addition, the Court found that the majority of unique addresses kept by Clarity1 were obtained by using address harvesting software or by obtaining harvested address lists from external parties.

What this means for your business

The consequences of sending Spam are not insignificant. The recent Clarity 1 decision sends a strong message that spammers can face substantial penalty.

It is therefore important that you have processes in place to ensure compliance with the Act. We suggest:

• that any recipient lists you have obtained from third-parties be carefully considered to ensure they have not been compiled from address-harvesting software;
• you have obtained the consent from your intended recipients in relation to your commercial electronic messages which you intend to distribute;
• your commercial electronic messages contain accurate contact information; and
• you provide an unsubscribe facility which remains valid for a period of a least 30 days after the message was sent.

Businesses or individuals who receive unsolicited commercial electronic messages which:

• have not been sent with your consent;
• do not contain accurate information about the person or organisation that authorised the sending of the message; and
• do not contain a functional unsubscribe facility,

can lodge submissions to ACMA, at www.acma.gov.au.

Please contact Andrew Bland at [email protected] to discuss your compliance with the Act or if spam is effecting your business operations.