Are your electronic messages Spam Act Compliant?

Last updated 25 August 2015
The Spam Act 2003 (Cth) (Act) came into effect on 12 December 2003 with all provisions coming into force on 10 April 2004.  The Act together with the Spam Regulations 2004 (Cth) (Regulations) provide a scheme for regulating and prohibiting the sending of unsolicited Commercial Electronic Messages and other types of Electronic Messages.

What is a commercial electronic message?

A Commercial Electronic Message is defined by section 6 of the Act as an electronic message that is commercial having regard to the content, the way in which the message is presented and the context of the message.  The Act applies to email as well as SMS messages.  The factors considered to determine whether the message is a “Commercial Electronic Message” are described by section 6 as  whether the message is:

  • an offer to supply goods or services;
  • advertises and promotes goods and services;
  • an offer to provide a business or investment opportunity;
  • to assist or enable a person to dishonestly obtain property belonging to another;
  • to assist or enable a person to dishonestly obtain a gain from another person; or
  • a purpose specified in the Regulations.
  • A Commercial Electronic Messages must have an Australian link.  Section 7 provides the preconditions that must be satisfied, including that:
  • the message originates in Australia; or
  • the individual or organisation that sent the message is physically present in Australia when the message is sent; or
  • the organisation’s central management is in Australia when the message is sent;
  • the computer or device used to send the message is located in Australia; or
  • the electronic account holder is:
  • an individual located in Australia; or
  • the organisation carries on business in Australia when the message is accessed.

Specific prohibitions

The Act specifically prohibits:

  •  the sending of unsolicited commercial electronic messages;
  • the use of address harvesting software; and
  • the use of an electronic address list that was supplied or acquired or used.

Requirements for sending Commercial Electronic Messages

The Act prescribes that commercial email must:

  •  include accurate sender information as provided by section 17 – information about the individual and the organisation who authorised the sending of the message;
  • a functional unsubscribe facility – as provided by section 18 (9);
  • be sent with the consent of the recipient as provided for in Schedule 2:
  • consent can be express.What is a Designated Commercial Electronic Message

Pursuant to Schedule 1 of the Act, a Designated Commercial Electronic Message must comply with the provisions of section 17 of the Act, as far as identifying the individual or organisation who authorised the sending of the message, but does not need to comply with the requirements of section 16 as far as including a functional unsubscribe facility.  In order to be classed as a Designated Commercial Electronic message, the message must:

  • consist of no more than factual information;
  • the name, logo and contact details of the person or organisation who authorised the sending of the message;
  • the name and contact details of the author;
  • if the author is an employee, the name, logo and contact details of the author’s employer (whether they be Partners in a Partnership of Directors in a Company); and
  • accurate sender information as provided by section 17 of the Act.

Who is responsible for enforcing the Spam Act?

The Australian Communications and Media Authority (ACMA) is responsible for enforcing the provisions of the Act.  Further information on the ACMA is available from www.acma.gov.au.
ACMA has responsibility for administering and enforcing the Act, including powers to take action in the Federal Court, issue infringement notices and seek enforceable undertakings against companies and individuals who contravene the Act.

Penalties

The Act provides for penalties of up to $1.1 Million (10,000 penalty units) per day for repeat offenders.
ACMA has a responsibility for administering and enforcing the Spam Act, including the power to commence proceedings in the Federal Court, issue infringement notices and seek enforceable undertakings against companies and individuals who contravene the Act.  It sets out penalties of up to $1.1 million per day for repeat corporate offenders.
The Act provides for a broad range of penalties and remedies.  If ACMA believes there has been a contravention of the rules, it may:
issue a formal warning to the alleged offender;
issue an infringement notice, whereby ACMA agrees not to institute proceedings if the alleged offender pays the penalty set out (to a maximum of $110,000 for companies and $22,000 for individuals); or
issue proceedings against the alleged offender in the Federal Court or Federal Magistrates Court.

The ACMA may apply to the court for various orders, including:

  • injunctive relief;
  • an order for compensation;
  • an order to account for profits; and
  • or an order to pay a pecuniary penalty.

Penalties for breaches of the prohibition on sending unsolicited Commercial Electronic Messages range from $2200 for an individual at the low end of the threshold, to $1.1 million for a corporation with a prior record sending two or more messages on the same day.

If you require advice in relation to your compliance with the Spam Act, please contact:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Facsimile: (07) 3221 0031
Mobile 0419 726 535

Disclaimer

This article is general in nature and cannot be regarded as legal advice.  It is general commentary only. You should not rely on the contents of this article without consulting one of our lawyers. If you would like advice regarding how the law applies to your individual circumstances, then please contact one of our legal practitioners.

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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