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Spam

Introduction

In addition to obligations imposed by the privacy regime, organisations must now ensure that their practices comply with the Spam Act 2003 (Cth) (Spam Act) and the Spam (Consequential Amendments) Act 2003 (Cth). The Spam Act was passed by the Federal Government on 2 December 2003, and the key operative provisions of the Spam Act commenced on 10 April 2004.

The anti-spam legislation is designed to tackle the proliferation of unsolicited emails and other electronic messages, such as SMS. The legislation has important implications for businesses operating in Australia and engaged in direct email and SMS marketing or who otherwise offer goods and services over the Internet.

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The Spam Act

In summary, the Spam Act includes the following features:

  • an opt-in regime (based on consent) for commercial electronic messaging;
  • a requirement that commercial electronic messages contain a functioning unsubscribe facility (other than designated commercial electronic messages), as well as information about the person who authorised the sending of the messages;
  • a prohibition on electronic address-harvesting software and address lists generated using such software; and
  • a flexible range of civil sanctions, including warnings, infringement notices and court-ordered penalties.

The Spam (Consequential Amendments) Act 2003 (Cth) provides the regulatory framework for the administration of the anti-spam legislation by the Australian Communications and Media Authority (ACMA) (previously the Australian Communications Authority).

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eMarketing Code of Practice to regulate spam

On 18 March 2005, the ACMA registered the Australian eMarketing Code of Practice (Code). The Code establishes rules for the sending of commercial electronic messages and builds on the Spam Act 2003 requirements.

Who does the Code apply to?

Now that it is registered, the ACMA may enforce compliance of the Code on those entities who undertake 'e-marketing activities' (as defined in the Telecommunications Act 1997 (Cth) ) and not just signatories to the Code.

The Telecommunications Act defines those who undertake' e-marketing activities' as those who use e-marketing as their 'sole or principal means' of marketing, promoting or advertising, or who market in this way by contract or arrangement on behalf of a third party. The meaning of the phrase 'sole or principal means' in this context is unclear. However the ACMA has released a policy statement regarding the interpretation of this phrase, which states that the ACMA considers that to be the 'principal means' of a entity's marketing of its own goods or services, e- marketing should be the entity's first means of marketing in terms of:

  • importance;
  • frequency; or
  •  the chief or main or leading means of marketing.

The ACMA considers that an effective measure of these factors is, when considering the total marketing, advertising and promotional activities undertaken by an entity, the number of potential customers e-marketing campaigns are expected to reach compared to other means of marketing employed by that entity in a 12 month period.

The Code does not apply to carriage service or data storage providers who have no control over the content of any messages sent by the eMarketer.

What does the Code require?

As the Code builds on the regulatory requirements of the Spam Act, it regulates commercial electronic communications with an Australian link, including those sent by email, instant messaging or mobile wireless technology. (Facsimile and voice telephony are excluded from this definition.)

Organisations affected by the Code will need to comply with the Spam Act as well as the additional obligations of the Code. For example, the Code requires that:

  • organisations have an internal procedure for dealing with complaints and details of this procedure must be accessible within each communication sent;
  • additional obligations (to those in the Spam Act) be complied with in relation to functional unsubscribe mechanisms;
  • organisations must only send commercial communications targeted to a recipient dependent on their location (as determined, eg, by GPS technology) if the recipient has expressly consented to such communications;
  • new rules concerning viral messages be complied with; and
  • new rules concerning the age sensitive content of commercial communications be complied with.

Enforcement

If an eMarketer fails to comply with a direction by the ACMA to conform to the Code, the ACMA can take the matter to the Federal Court, where penalties of up to $250,000 can be imposed for each contravention.

The Code also provides for Recognised Industry Bodies to investigate complaints about breaches of the Code by their members. The Advertising Federation of Australia, the Australian Direct Marketing Association (ADMA) and the Public Relations Institute of Australia have been granted such status by the ACMA.

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Internet industry code on spam registered

ACMA also registered the Internet Code of Practice - A Code for Internet and Email Service Providers, which came into effect from 16 July 2006. This Code applies to internet service providers and email service providers in Australia as well as email service providers that are located outside Australia but who provide email services in Australia. It imposes on these internet and email service providers a range of new obligations, including:

  • to provide subscribers with information about how to miminise spam and their obligations to comply with the Spam Act 2003;
  • to provide spam filtering options to subscribers;
  • to ensure that their Acceptable Use Policies prohibit the use of their networks for spamming;
  • not to have open relay or open proxy servers;
  • to retain the right in their Acceptable Use Policies to scan their own networks for subscribers' misconfigured mail and proxy servers;
  • to comply with certain standards in relation to spam complaints and to have documented complaints handling processes.

The Code also recommends that service providers consider and implement best-practice actions that can be taken to assist in the reduction of spam, and gives a number of examples of what are currently thought to be best practice.

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