White SW Computer Law
|Intellectual Property, Information Technology & Telecommunications Lawyers|
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Since the Spam Act 2003 (Cth) (“Spam Act”) came into force in April 2004, there has not been much news of spammers being prosecuted and our inboxes continue to be bombarded by unwanted messages. This article looks briefly at the outcome of the Australian legislative approach to combating spam.
The Spam Act regulates the sending of “commercial e-mail” and other types of “commercial electronic messages”.
In summary, the Spam Act:
For more in depth information, you can read our paper Combatting Spam with Legislation , which was presented at the 2004 Australian Computer Society National Conference.
On 1 July 2005, the Australian Communications Authority and the Australian Broadcasting Authority merged to form the Australian Communications and Media Authority (“ACMA”). It is now the ACMA that has the power to commence legal proceedings under the Spam Act, for example to recover penalties on behalf of the Commonwealth or to request an injunction to prevent a party from sending spam.
Information supplied by the ACMA states that since the Spam Act came into force in April 2004, the following actions have been taken against spammers:
In August 2005, the ACMA applied to the Federal Court to vary an injunction it had obtained against Clarity1 Pty Ltd in the matter of Australian Communications & Media Authority v Clarity1 Pty Ltd and Wayne Robert Mansfield.
The terms of the initial injunction were:
‘An interlocutory injunction restraining the first respondent, whether by its directors, servants, agents or otherwise, from sending, or causing to be sent, commercial electronic messages, as defined by s 6 of the Spam Act 2003 (Cth) with an Australian link to any electronic address except in respect of the electronic addresses for which the first respondent has obtained the prior consent of the accountholder in accordance with the Spam Act 2003 (Cth) or which is otherwise permitted by that Act.’
The ACMA requested that the terms of the injunction be changed to the following:
‘1. An interlocutory injunction restraining the first respondent, whether by its directors, servants, agents or otherwise, from sending, or causing to be sent, commercial electronic messages with an Australian link to any electronic address unless it has obtained:
1.1 the express consent of the account-holder of the electronic address; or
1.2 consent that can be reasonably inferred from:
1.2.1 a business or other relationship with the account-holder of the electronic address;
1.2.2 the conduct of the account-holder of the electronic address, apart from conduct constituted by the fact that the account-holder of the electronic address has not notified the first or second respondent that it wishes to unsubscribe from receiving such commercial electronic messages.’
The Court decided not to vary the terms of the injunction as requested by the ACMA.
When the Court considers whether it should grant interlocutory relief, the party requesting the injunction needs to demonstrate that there is a serious issue to be tried and that the balance of convenience favours the granting of the injunction.
Mr Mansfield submitted to the Court that in the case of email contacts established prior to the Spam Act coming into force, where such a recipient has not opted out, consent has been given to receive further email.
As the Spam Act is new legislation and the Court considered that Mr Mansfield had presented an arguable case, it would not grant the amended injunctive relief sought by the ACMA.
The court also considered that the possibility of voluminous email being sent by Clarity1 and Mr Mansfield before the matter was heard at trial would not harm the public interest sufficiently to warrant the amended injunctions being granted.
The ultimate outcome of this matter at trial will be of great significance to those people still sending spam to a list of addresses used prior to the Spam Act coming into effect.
It is important for businesses to realise that the Spam Act does more than just regulate email. Electronic messages regulated by the Spam Act include:
Electronic messages sent:
SMS messages are one form of electronic messages that fall under this definition.
The ACMA has reported that following complaints from the public, two companies have been fined a total of $13,200 for breaching the Spam Act by sending out more than 50,000 SMS messages marketing an investment scheme for software providing horse racing tips.
Global Racing Group Pty Ltd, was issued with infringement notices for penalties of $11,000 and Australian SMS Pty Ltd (which was contracted by Global Racing Group to send the SMS messages), was fined $2,200 and has given ACMA an enforceable undertaking to abide by the Spam Act and the Australian eMarketing industry code of practice.
Industry self regulation is an important supplement to legislative regulation. An example of an industry code of conduct is the Australian eMarketing Code of Practice, which can be viewed at the ACMA website www.acma.gov.au .
This industry code was prepared by the Australian eMarketing Code Development Committee and applies to all sections of the eMarketing industry. It was registered in March 2005 and aims to promote best practice use of Commercial Communications, delivering a higher standard of practice than required by the Spam Act.
An example of a requirement of this code of practice, which is broader than the requirements of the Spam Act is that Commercial Communications cannot be sent by SMS or other mobile wireless technologies between the hours of 9pm and 8am Monday to Friday and 9pm to 9am on weekends, unless the recipient or relevant electronic account authority has expressly invited delivery within these hours or been notified in advance that this will be the case.
Despite wide ranging powers granted under the Spam Act and action taken against over 200 businesses by the ACMA, spam continues to be a major problem. Clearly it is a problem that Australia cannot tackle in isolation. Much of the spam in our inboxes comes from overseas and unless there is an Australian link, Australian authorities are powerless to prevent our continued electronic bombardment.
The Australian eMarketing Code of Practice is an example of businesses voluntarily undertaking to limit their use of electronic messages in marketing. If this and other like codes of practice are publicised sufficiently, hopefully the public will play an even greater role in the battle against spam by favouring those businesses who do not spam their potential customers. However, the relatively low cost to the sender of sending millions of electronic messages in the hope of making a sale is the major hurdle to be overcome whether by legislation, industry self regulation or consumer’s behaviour.
In that sense, one of the Internet’s greatest attractions is also its greatest enemy and the ultimate answer to spam will probably be a technology based solution that in some way prevents mass unsolicited advertising. Until then, legislation and self regulation can only hope to curb the spam problem one country at a time.
WHITE SW COMPUTER LAW
www.computerlaw.com.au © White SW Computer Law 2005 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.