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Legal: Spam – not in a can

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The Spam Act became law on 12 December 2003 with a proviso that its penalty provisions would come into effect 120 days later – 11 April 2004. Email marketing is a powerful tool for a business of any size. What impact the Spam Act will have on Australian companies is anyone’s guess. Nicholas Blackmore, Corrs Chambers Westgarth, checks the fine print.

The Spam Act imposes new requirements regarding the sending of commercial electronic messages. This will directly affect businesses who market and communicate with their customers through email, SMS and instant messaging.

WHO IS AFFECTED BY THE ACT?

All Australian businesses are covered by the Act, regardless of size. There is no requirement under the Act that messages be sent in bulk – even a single electronic message to a single recipient must comply with the requirements of the Act.

WHAT IS COVERED BY THE ACT?

The Act applies to commercial electronic messages with an Australian link.

An electronic message is commercial if one of the purposes of the message is to offer to supply or to advertise or promote goods or services, land or an interest in land, or a business or investment opportunity.

The definition of electronic message covers email, SMS and instant messaging messages. It does not include voice telephone calls or faxes.

An electronic message will only be subject to the Act if it has an Australian link. Generally, an Australian link will exist if the message is sent from or received in Australia. Obviously, territorial restrictions on the ability of the Australian authorities to enforce the Act mean it will only be enforceable against infringers located in Australia.

COMMERCIAL ELECTRONIC MESSAGES AND CONSENT

The Act applies to both solicited and unsolicited electronic messages, but in different ways. Broadly speaking, unsolicited commercial electronic messages are generally prohibited by the Act, whereas solicited commercial electronic message merely need to include certain details.

A message is solicited if the recipient consents to receiving the message. The Spam Act provides that consent can be either:

  • express consent obtained from the recipient; or
  • consent which can be reasonably inferred from the conduct of the recipient or from the business and other relationships of the recipient.

Consent may be expressly given or withdrawn by the recipient at any time.

If consent to receive a commercial electronic message has not been expressly obtained from the recipient and cannot reasonably be inferred, the message is unsolicited and (subject to a few exceptions) cannot be sent.

IDENTIFICATION AND CONTACT INFORMATION

Even if a commercial electronic message is solicited, the Act provides that the commercial electronic message cannot be sent unless the message:

  • Clearly and accurately identifies the sender;
  • Includes accurate information about how the recipient can readily contact the sender (which is reasonably likely to remain valid for at least 30 days after the message is sent); and
  • must include a functional unsubscribe facility – ie an address to which the individual can respond to indicate that they do not wish to receive any further messages.


ENFORCEMENT AND PENALTIES

The Act is enforced by the Australian Communications Authority, which has the power to direct a person to change practices which are in breach of the Act and to issue infringement notices. The Federal Court may order a person to pay pecuniary penalties for breaches of the Act. Penalties for breaches of the prohibition on sending unsolicited commercial electronic messages range from $2,200 for an individual with no prior record sending a single message to $1,100,000 for a corporation with a prior record sending two or more messages on the same day. Penalties for breaches of the other provisions of the Act similarly range from $1,100 to $550,000.

CONCLUSION

The Spam Act is completely new law in Australia and may catch some businesses unaware. All businesses which market or communicate with customers by electronic means should review their existing policies and practices and identify whether the business currently sends messages which may be prohibited or restricted under the Act.

The information contained in this article is not exhaustive and should not be relied on in place of legal advice. Nicholas Blackmore is a Solicitor in the Information Technology Practice Group at Corrs Chambers Westgarth. For further information, visit www.corrs.com.au or call (03) 9672 3000.

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