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On 10 April 2004, Commonwealth legislation entitled the "Spam Act 2003" came into effect. Despite its title, the legislation is not limited to "Spam" alone, but regulates the sending of all commercial electronic messages with an Australian link. The Act also prevents the use of address-harvesting software and electronic address lists produced by such software. This information has been provided by Melbourne based Bleyer Lawyers
Commercial Electronic Messages
The phrase "commercial electronic messages" is defined very widely in the Act, and will cover emails, instant messaging, SMS and other mobile phone messaging. To be covered by the Act, the message must be "commercial" in nature, such that either its content or the content which can be accessed via links within the message refers to a commercial transaction, or directs the recipient to a location where a commercial transaction can take place. This would include offering to supply goods or services, advertising or promoting goods, services, business or investment opportunities. This means that messages that merely contain factual information, such as notification that a business was closed over a certain period without any offer of a commercial nature, are not covered.
The Act is not limited to "bulk" messaging; a single message will be covered by the Act.
If the person authorising the sending of the message is a government body, a registered political party, a religious organisation, a charity or charitable institution or an educational institution, the Act will not apply.
Australian Link
Only commercial electronic messages with an Australian link are covered. An Australian link occurs where either the:
1. message originates in Australia;
2. sender of the message is in Australia or controlled in Australia;
3. computer used to access the message is located in Australia; or
4. the recipient is in Australia or carries on business in Australia when the message is accessed.
Rules
The Act contains three rules regarding the transmission of commercial electronic messages.
Rule 1. Commercial electronic messages must not be sent without consent
Consent may be either express or reasonably inferred from conduct, business or other pre-existing relationships. Examples of a relationship which would infer consent would be shareholders and a company, magazine and newspaper subscribers, registered users of online services, professional association members, employers and employees or contractors.
It seems that it would not be reasonable to infer that a person consented to receiving commercial electronic messages simply because of a transaction along the lines of any one-off purchase. Transactions such as the purchase of a book or groceries from a shop, attendance at a concert, performance or movie, would not be a good basis for inferring consent, or assuming that there is a pre-existing relationship.
Consent is not inferred from the mere publication of an email address. However, it can be inferred where the address is conspicuously published, there is no notice that the recipient does not want to receive unsolicited commercial electronic messages, and the commercial electronic message relates to the work related business, functions or duties of the recipient. This would mean a stationery company could legitimately send a commercial electronic message to the email address of an office manager found on a web site.
Rule 2. All commercial electronic messages must include accurate information about the sender
The message must contain the sender's identity and contact details.
Rule 3. All commercial electronic messages must contain a functional unsubscribe facility
A functional unsubscribe facility could for example be a link to a website which allows the recipient to unsubscribe, or an email address or phone number which can be used to notify the sender that the recipient no longer wishes to receive the messages. Request must be processed within five days of receipt. In terms of the Act, the unsubscribe facility must be reasonably likely to be functional for a period of thirty days after the day on which your message was sent.
Address-harvesting software
Address harvesting software is software which automatically trawls the internet (similar to a search engine) and records email addresses. The legislation prohibits the supply, acquisition and use of both address harvesting software or lists generated by such software, where the supplier, recipient or users is in Australia, or carry on a business in Australia at the time of supply, acquisition or use, and the purpose of the supply, acquisition or use is to send commercial electronic messages.
Enforcement
The Australian Communication Authority is responsible for enforcing the Act, and there are a number of ways of doing so. If the ACA was satisfied that the contravention was largely inadvertent and would not be repeated, it may choose to issue a formal warning.
If the contravention was more serious, the ACA may choose to issue infringement notices for contraventions of the legislation, which are a similar concept to a parking fine issued by a local council. A person who receives an infringement notice may refuse to pay, but could then be subject to a court action, where, if the contravention was proven, they could be penalised at a higher rate than the infringement notice.
Finally, the ACA may initiate court action in respect of a contravention of the legislation. If a contravention is found to have occurred, the ACA may apply to the court to order the person or organisation involved to pay a penalty, and additionally, to surrender any financial benefit they gained in the course of their contravening activity.
Any person who has suffered loss or damages from someone else contravening the Act, or the ACA on their behalf, may apply to the court to make an order for compensation.
A business that is found to be in breach of the Act may be subject to a Court imposed penalty of up to $220,000 for a single day's contraventions. If, after that finding, the business contravenes the same provision, they may be subject to a penalty of up to $1.1 million.
Conclusion
In conclusion, the three key steps all entities must follow when sending commercial electronic messages are as follows:
1. Obtain Consent - only send commercial electronic messages with the recipient's consent - this can be either express or inferred.
2. Identify yourself - include clear and accurate information about the person or business that is responsible for sending the commercial electronic message.
3. Unsubscribe - Ensure that all commercial electronic messages contain a functional unsubscribe facility. Deal with unsubscribe requests promptly.
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