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Allens Arthur Robinson

Focus: Telecommunications – August 2007

ACMA cracks down on spam

In brief: The past two months has seen a crackdown by the Australian Communications and Media Authority on unsolicited electronic messages. Special Counsel Karin Clark (view CV) and Lawyer Suzanne Komattu-Mathews report on the outcome of three recent decisions under the Spam Act 2003 (Cth). 

How does it affect you?

  • To avoid breaching the Spam Act 2003 (Cth), telemarketers and businesses that use telephone marketing must be careful to ensure that their messages identify the sender, allow a recipient to send an unsubscribe message and are sent with the consent of the recipient.
  • The DC Marketing decision indicates that a message may be regarded as a commercial electronic message even where the message itself does not contain advertising information. The Australian Communications and Media Authority will consider factors such as the way the message is presented and what information may be obtained from any contact information contained in the message.
  • The Pitch and IMP Mobile decisions serve as reminders that commercial electronic messages must clearly state how a recipient may opt out of receiving the messages.

DC Marketing – 'missed call' spam

The Australian Communications and Media Authority (ACMA) has penalised DC Marketing Europe Limited (DC) with an infringement notice and a penalty of $149,600 for breaching the Spam Act 2003 (Cth) (the Act). DC had used short duration calls to consumers' mobile phones to leave a 'missed call' message on the phone.

ACMA penalised DC for 102 contraventions of the Act during July and August 2006.

DC's 'missed call' marketing involved calling a recipient's phone for a short duration, the effect of which was to leave a 'missed call' message on the phone with no indication of who had made the call. If the recipient returned the call, they received marketing information from DC at their own cost.

ACMA treated the marketing messages as 'electronic messages' under the Act as there was no voice component to the calls and each missed call displayed as a message on the recipient's phone.

Under section 6 of the Act, a 'commercial electronic message' is defined as an electronic message where, having regard to:

  • the content of the message;
  • the way in which the message is presented; and
  • the content that can be located using the links, telephone numbers or contact information (if any) set out in the message,

it would be concluded that the purpose of the message is to advertise products or services.

While the missed call contained no advertising content, the content located by returning the call was marketing information.

ACMA found that the messages contravened the Act in three ways:

  • the recipient had no way of identifying who was the sender of the message;
  • DC had not obtained the recipient's consent to send the message; and
  • the message did not contain an unsubscribe facility. 

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Pitch Entertainment Group – ring-tone club

ACMA also recently fined Pitch Entertainment Group (Pitch) $11,000 for sending more than one million commercial electronic messages to mobile phones without providing a functional unsubscribe facility. Pitch, which trades in Australia as Splash Mobile, sent SMS messages to recipients' phones to promote a ring-tone club.

Pitch has claimed that, from the time it became aware that it was in breach of the Act, it had provided recipients with clear instructions on how to stop receiving the messages. ACMA's chairman, Chris Chapman, said that while he welcomed the initiative taken by Pitch, ignorance of the law was no defence.

According to ACMA, Pitch and its directors have made an enforceable undertaking that:

  • all future messages contain a functional unsubscribe facility;
  • the company is capable of receiving unsubscribe requests;
  • its staff receive training in the Act and are informed of the undertaking;
  • its systems and processes comply with the Act; and
  • that it will audit its messages and report to ACMA on the number of messages sent with an unsubscribe facility, the number of unsubscribe requests received and the steps it has taken to act on those requests.

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IMP Mobile – 'secret admirer' service

ACMA has also fined International Machinery Parts Pty Ltd (IMP Mobile) $4400 for sending SMS messages to mobile phones without providing a functional unsubscribe facility.

IMP Mobile promoted its 'secret admirer' services by sending unsolicited SMS messages to recipients from January to May 2006.

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Healthy reminders on electronic messaging

The Act requires that all electronic messages sent by an individual or corporation satisfy each of the following requirements:

  • the sender must obtain the recipient's consent to send the message (s16);
  • the message must contain accurate information about the sender to allow the recipient to identify how the recipient can readily contact the sender (s17); and
  • the message must contain an electronic address in the message to allow a recipient to send an unsubscribe message to the sender (s18).

Messages caught as 'electronic messages' include SMS messages, MMS messages and instant messages.

The DC Marketing decision indicates that a message may be regarded as a commercial electronic message even where the message itself does not contain advertising information. ACMA will take into account other factors, such as the way the message is presented and what information may be obtained from any contact information contained in the message.

The unsubscribe facility must clearly state how a recipient may opt out of receiving the messages.

These decisions are a reminder that the failure to comply with these requirements is a breach of the Act and may have costly consequences for mobile marketers, with repeat offenders facing penalties of up to $1.1 million per day.

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