- Category: November - December 2008
Australia is one of the pioneers and leaders in the Asia Pacific when it comes to Anti-Spam legislation. It is also one of the few countries in Asia, which has successfully caught spammers in their country and enforced their Anti-Spam Act. Here’s a brief overview of the legislative aspect of the country’s Spam Act.
The Australian Communications and Media Authority (ACMA) is responsible for enforcing Spam Act 2003. ACMA has a comprehensive, multipronged and practical strategy to fight spam, which focuses on the following key areas:
- directly enforcing the Spam Act 2003
- undertaking effective education and awareness campaigns as well as activities
- working in partnership with the industry
- developing technological and spam-monitoring processes, such as the SpamMATTERS spam reporting tool
- working with other governments around the world on international activities to combat spam
The Australian Spam Act of 2003 prohibits the sending of ‘unsolicited commercial electronic messages’ (known as spam) with an 'Australian link'. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.
The Spam Act covers emails, mobile phone text messages (SMS), multimedia messaging (MMS) and instant messaging (iM) and other electronic messages of a commercial nature. However, the Act does not cover voice or fax telemarketing.
ACMA can take any of the following actions for breaches of the Spam Act:
- issue a formal warning
- accept an enforceable undertaking from a person or company - these undertakings usually contain a formal commitment to comply with the requirement of the Spam Act that ACMA has found that person or company to be in breach of. A failure to abide by an undertaking can lead to ACMA applying for an order in the Federal Court.
- issue infringement notices
- seek an injunction from the Federal Court to stop a person sending spam
- prosecute a person in the Federal Court.
Penalties of up to $1.1 million a day apply to repeat corporate offenders. The penalty units referred to in the Spam Act are equal to $110 each. For example the penalty under section 25-(5)-(b) of the Spam Act for a company with a previous record of spamming and who sent two or more spam messages on a given day without consent has is a maximum fine of 10,000 penalty units. This equates to a maximum fine of $1,100,000.
The penalty provisions of the Spam Act came into force in April 2004. Initially ACMA focused on educating electronic message senders and raising awareness of the requirements of the Act. Companies identified during the first few years as possible spammers were in the first instance advised of the requirements of the Spam Act and how they could meet them. In general, only serious repeat offenders had enforcement action taken against them.
Having completed this extended education and awareness campaign, ACMA is now committed to vigorous enforcement of the Spam Act.
In fact, during the first three years of enforcing the Spam Act, ACMA issued:
- eleven formal warnings
- five enforceable undertakings
- fifteen infringement notices
- one prosecution in the Federal court in Perth - ACMA vs Clarity1/Wayne Mansfield. In October 2006 penalties of $4.5 million and $1 million respectively were handed down against Clarity 1 and its Managing Director.
Since the enforcement provisions of the country’s Spam Act 2003 came into effect in April 2004, Australia has gone from tenth in the Sophos list of spam relaying countries (sources of spam) to thirty-fifth for the 2007 calendar year.
Action ACMA has taken against spammers
- November 2008 - ACMA issued a formal warning to The Ad Company for alleged breaches of the Spam Act 2003 as a result of sending commercial electronic messages by email without the consent of the recipient. It is also alleged that a quantity of the messages did not have an unsubscribe link or information on how to unsubscribe within the messages.
- August 2008 - ACMA issued an infringement notice to mBlox Pty Ltd, a multinational company headquartered in the United States, for alleged contraventions of the Spam Act 2003. mBlox has committed to work with ACMA to ensure its e-marketing customers are complying with the Spam Act and has paid the $11,000 penalty.
- August 2008 - Best Buy Australia issued an infringement notice for $4,400 for allegedly breaching the Spam Act 2003 by sending commercial electronic messages without the consent of the recipient. In particular, customers received emails from Best Buy Australia, including after they had requested to be removed from its mailing lists.
- July 2007 - DC Marketing issued with a $149,600 penalty for 'missed call' marketing. – Missed call marketing involves the sending of short duration calls to mobile phones, thereby leaving a ‘missed call’ message on the phone. When the mobile phone owner returned the missed call, they received marketing information from DC Marketing. ACMA penalized DC Marketing for 102 contraventions of the Spam Act 2003 relating to missed call marketing activities in July and August 2006.
- June 2007 - The ACMA fined the Pitch Entertainment Group (Pitch) $11,000 for extensive breaches of the Spam Act. ACMA found that the Pitch Entertainment Group, which trades as Splash Mobile in Australia, sent over one million commercial electronic messages to mobile phones without a functional unsubscribe facility. Pitch and its directors have also entered into an enforceable undertaking that requires future compliance with the Spam Act and contains stringent compliance reporting and staff education obligations.
- June 2007 - ACMA fined International Machinery Parts Pty Ltd (IMP Mobile) $4,400 for breaches of the Spam Act. IMP Mobile also failed to provide a functional unsubscribe facility when sending messages to mobile phones.
- 27 October 2006 – Justice Nicholson in the Federal Court in Perth today to award a pecuniary penalty of $4.5 million against Clarity1 Pty Ltd and $1 million against its managing director, Mr Wayne Mansfield, for contravening the Spam Act 2003 (Spam Act). ACMA submitted to the Federal Court that Clarity1 Pty Ltd and Mr Wayne Mansfield sent out at least 231 million commercial emails in twelve months after the Spam Act commenced in April 2004, with most of these messages unsolicited and in breach of the Act. On 13 April 2006, Justice Nicholson found that both Clarity1 and Mr Mansfield were in breach of the Act for both sending unsolicited commercial electronic messages, and for using harvested address lists.