White SW Computer Law
|Intellectual Property, Information Technology & Telecommunications Lawyers|
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It is now almost five months since the Spam Act 2003 (Cth) ( “Spam Act” ) came into force, but there does not seem to have been a great change in the level of spam being received by Australians The Spam Act prohibits the sending of “unsolicited commercial electronic messages”, without the consent of the recipient unless an exception applies. This article summarises the main provisions of the Spam Act, looks at some of the international legislative approaches at combating spam.
The Spam Act regulates the sending of “commercial e-mail” and other types of “commercial electronic messages”.
In summary, the Act:
An electronic message includes more than email “spam”. It includes messages sent using an internet or any other carriage service not wholly located outside Australia, which is sent to:
If a message is sent by way of a voice call made using a standard telephone service, the message is not an electronic message for the purposes of the Spam Act.
Unsolicited commercial electronic messages must not be sent if they:
unless the recipient consented to the sending of the message or the sender did not know and could not, with reasonable diligence, have ascertained that the message had an Australian link or if the message was sent by mistake
Consent may in some case be inferred from conspicuous publication of an electronic address, which enables the public to send electronic messages to a particular employee or officeholder unless the publication is not accompanied by a statement to the effect that the relevant electronic account-holder does not want to receive unsolicited commercial electronic messages at that electronic address.
In such cases, consent will be inferred, so long as the messages are relevant to the business, function or duties of the recipient or are relevant to the office, position, function or role of the recipient concerned.
To determine whether a message is a commercial electronic message, having looked at:
you must be able to conclude that the purpose, or one of the purposes, of the message is to:
A commercial electronic message has an Australian link if:
An electronic message is a designated commercial electronic message if the message consists of no more than factual information (with or without directly-related comment) and any or all of the following additional information:
Designated commercial electronic messages also include any electronic message authorised by any of the following bodies:
if the message relates to goods or services; and the party authorising the message is the supplier, or prospective supplier, of the goods or services concerned.
Further, designated commercial electronic messages include any electronic message authorised by an educational institution where the recipient and / or a member or former member of the recipient's household is or has been, enrolled as a student in that institution; and the message relates to goods or services; for which the institution is the supplier, or prospective supplier.
A person must not send a commercial electronic message to a non-existent electronic address if:
unless the person did not know; and could not, with reasonable diligence, have ascertained that the message had an Australian link.
A commercial electronic message that has an Australian link must not be sent unless the message clearly and accurately identifies who authorised the sending of the message and includes accurate information about how the recipient can readily contact that party, unless the sender did not know; and could not, with reasonable diligence, have ascertained; that the message had an Australian link, or if the sender sent the message by mistake.
A commercial electronic message that has an Australian link and is not a designated commercial electronic message must not be sent unless:
Address-harvesting software is software that is specifically designed or marketed for use for:
A harvested-address list means:
where address-harvesting software has been used in the production of the list, collection or compilation.
It is forbidden to supply or offer to supply:
If the supplier is:
An exception is provided where the supplier had no reason to suspect that the customer, or another person, intended to use the address-harvesting software or the harvested-address list, to send commercial electronic messages which contravene the Spam Act, or if the supplier did not know; and could not, with reasonable diligence, have ascertained that the customer was physically present in Australia at the time of the supply or offer; or carrying on business or activities in Australia at the time of the supply or offer.
Similarly, a person must not acquire:
if the person is physically present in Australia; or carrying on business or activities in Australia at the time of the acquisition, unless the person did not intend to use the address-harvesting software or the harvested-address list in connection with sending commercial electronic messages in contravention of the Spam Act.
The Australian Communications Authority (ACA) may issue a formal warning or an infringement notice to parties that breach the Spam Act. If the penalty specified in the notice is paid within the period allowed by the ACA, the matter will not be dealt with by the Federal Court.
If the penalty is not paid, the ACA may take legal action in the Federal Court to recover penalties of up to $1.1 million, up to six years after the breach.
The Federal Court may grant an injunction restraining the conduct that breaches the Spam Act and / or order the party breaching the Spam Act to:
To determine whether a person has suffered loss or damage, the Court may consider:
It is obvious that the Spam Act has so far done little to combat the huge volume of unsolicited messages received by Australians, which are sent from overseas. To combat the worldwide problem of spam, a concerted and co-ordinated international approach will need to be taken.
The European Union was one of the early movers, introducing legislation as early as 2002 to achieve a pan-European ban on spam being sent to individuals. Under Article 13 of Directive 2002/58/EC on Privacy and Electronic Communications; marketing by e-mail, SMS and other electronic messages received on any mobile or fixed terminal marketing is only allowed with prior consent, subject to a limited exception covering existing customer relationships.
Member States were required to apply and effectively enforce this regime by the October 2003, but only a small number of Member States complied with this deadline. Some commentators have called the Directive a legislative disaster, but others think it has been worthwhile, as it put spam on the political agenda.
From 1 January 2004, the US Federal Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act came into force. There is also extensive State based US anti-spam legislation. There are some commentators who say the US Federal legislation is not as strong as the EU Directive as it still allows marketers to send unsolicited commercial email if it contains an opt-out provision, a legitimate return address, a valid subject line indicating the email is an advertisement and the sender's physical address. However, there have already been considerable criminal and civil penalties imposed on US spammers based on the State laws. In May 2003, Earthlink were awarded damages of US$16.4 million against the “Buffalo Spammer”, Howard Carmack. Carmack also received a prison sentence. In October 2003, the State of California successfully sued the firm PW Marketing and its owners Paul and Claudia Griffin, who were ordered to pay US$2 million in civil penalties for, amongst other things, sending unsolicited commercial email. Amendments to Californian law in January 2004 now also allows individuals to sue spammers and recover damages.
Australians have been active on the international stage too. The Australian Competition and Consumer Commission is co-operating with international law enforcement agencies, including the UK Office of Fair Trading and the US Federal Trade Commission as part of investigations into international spam activities and in support, Australia, the US and UK have signed a memorandum of understanding.
The United Nations is also involved by proposing anti-spam legislation examples that countries could adopt, in an attempt to co-ordinate global efforts to combat spam and make it easier to prosecute spammers around the world.
Before sending an electronic message, you should ask the following questions:
Legislation on its own is unlikely to combat the worldwide spam problem. In essence it is a technology problem and legislation can only hope to act as a deterrent. However, Government in partnership with industry should work towards a combined effort of both technology and legislation both in Australia and on an international basis to continue to develop our electronic communication channels so we can effectively control access to electronic message transmission.
STEVE WHITE & SARAH PIKE
WHITE SW COMPUTER LAW
© White SW Computer Law 2004 www.computerlaw.com.au This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice.