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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 abland@blandslaw.com.au to
discuss your compliance with the Act or if spam is
effecting your business operations.
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