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Anti-Spamming Legislation in Australia

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*Lis*
The Commonwealth Government has recently enacted legislation targeted at restricting unwanted direct marketing "Spam" emails. The Spam Act 2003 (Cth) is expected to come into force in April 2004.

The Act makes it illegal to send unsolicited commercial electronic messages, whether email or SMS mobile phone text messages, without the recipient�s consent.

When sent, commercial electronic messages must allow recipients the right to opt-out of receiving future messages. The Act also regulates the use of electronic address harvesting software. Businesses that use email and SMS messaging to send marketing communications should review their practices to ensure compliance with the Act.

For all the lofty aims of the Act, the penalties provided for will only apply to persons or businesses within Australia. This effectively limits the Act to application where spam originates in Australia. Efforts to control spam originating from overseas will rely on the co-operation of foreign governments.

What is a Commercial Electronic Message?
For the purposes of the Act "commercial electronic messages" (CEM) are messages sent for a broad range of commercial purposes, including advertisements, offers to supply, or promotion of suppliers of goods, services, land or business opportunities.

There are exemptions for the sending of factual messages, such as information sheets or newsletters. However, if businesses include marketing material in the email, the message will fall within the definition of a CEM if its primary intent is not factual.

What constitutes consent?
Consent may be express or inferred. Businesses will have inferred consent to send spam to customers with whom they have a pre-existing relationship. This requires an ongoing relationship, such as a company�s relationship with its shareholders, or with customers who have purchased a licence or product involving an ongoing warranty.

Businesses cannot send unsolicited messages if a reasonable person would not expect to receive future messages from the company.

Consent to send electronic messages to a recipient may also be inferred where an electronic address is �conspicuously published� or made generally accessible to the public. This allows businesses to send CEMs to the person�s work related email address regarding matters within the scope of their position. Thus, when employees� addresses are specified on a firm�s website it should be specified that they do not wish to receive unsolicited CEMs at that address if that is in fact the case.

Regulating the Content of CEMs
The Act requires that CEMs clearly and conspicuously identify the sender. Thus, when sending marketing emails, businesses must include their legal name and ABN. CEMs must also contain a functional unsubscribe facility, allowing the recipient to opt out of receiving further messages from the sender.

Address Harvesting Software
The Act bans the use, sale and development of address harvesting software and lists compiled from such software. Thus, companies should ensure that any lists of addresses used in email or SMS marketing have not been obtained through address harvesting software. Companies may still compile lists of electronic addresses manually or use lists of electronic addresses harvested from a source other than the Internet. Thus, where a business uses a list broker to supply addresses it should seek warranties from the broker that the addresses were not illegally harvested.

Enforcement
A system of warnings, enforceable undertakings and injunctions are provided for by the Act in addition to civil pecuniary penalties enforced by the Australian Communications Authority in the Federal Court. Pecuniary penalties range from $5,500 to $11,000 for companies and $2,200-$1,100 for individuals. These penalties apply per message sent. The daily ceiling of penalties that may be charged for all contraventions of a particular provision in the Act occurring in one day is $1.1 million for companies and $220,000 for individuals. Compensation can also be awarded to individuals who have suffered loss or damage as a result of contravention of the Act.

What Does it Mean for Australian Businesses?
Australian companies engaged in email and SMS marketing should review their practices to ensure that they have the consent of their message recipients and that messages sent identify the sender and provide a functional unsubscribe facility. The Spam Act is not specifically designed to regulate reputable Australian firms engaged in legitimate marketing activities, but it is likely that these will be the one�s affected.
Edited by EB-Ally

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