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Spam Act Passed
The Spam Act and Spam (Consequential Amendments) Act were passed by the Senate on the 2nd of December 2003 and will come into force 120 days after Royal Assent, which should occur before Christmas 2003.
The Spam Act creates a regime to regulate the sending of commercial electronic messages and establishes a number of penalties for any person or company which breaches its provisions (including fines of up to $1,100,000 per day for repeat offender companies).
It is therefore important to understand how the Spam Act may affect your business, particularly if your business uses email or SMS messages for commercial purposes.
It should be noted that, as its penalties can only be enforced against persons or businesses in Australia, the overall effectiveness of the Spam Act is limited to spam sent from within Australia.
What does the Spam Act do?
The Act creates a regime that primarily regulates the sending of commercial electronic messages.
A commercial electronic message is an e-mail, SMS or other electronic message of a commercial nature with an Australian link.
Subject to a few limited exceptions, the Spam Act provides that commercial electronic messages
- must not be sent without the recipient's prior consent (express or implied);
- must contain a functional unsubscribe facility; and
- must accurately identify the sender (the individual or organisation who authorised sending the message).
The Act also prohibits the use, supply or acquisition of address-harvesting software and electronic address lists produced using address-harvesting software.
What do you need to do before April 2004?
Generally, businesses whose email practices abide by the privacy requirements set out in the Privacy Act will, to a a large extent, already comply with the provisions of the Spam Act.
However, you should check to ensure that:
- your business only sends commercial electronic messages when it has the recipient's consent;
- commercial electronic messages and web offers sent by your company have:
- a functional unsubscribe facility; and
- include accurate sender information; and
- all prominently published electronic business addresses contain a statements saying that the addressee does not wish to receive unsolicited commercial messages
What constitutes consent?
Consent may be expressed or inferred from conduct, business relationships or other relationships.
This means that businesses can continue to send commercial emails to clients/customers which are within the reasonable scope of the particular business relationships. Consent may also be inferred from publication of an electronic address, but only where that address:
- is a functional business address for a particular employee, group or office-holder;
- is 'conspicuously published';
- is published without a statement excluding consent; and
- it would be reasonable to assume that the addressee consented to publication.
What are the exceptions?
Certain commercial electronic messages, termed designated commercial electronic messages, may be sent without consent and without a functional unsubscribe facility.
Designated commercial electronic messages are commercial electronic messages:
- from government bodies;
- from registered political parties;
- from charities;
- from religious organisation;
- from educational institutions to current/.former students and their households; or
- which contain no more than factual information
The exception for purely factual messages means that businesses may continue to send some messages without prior consent and without a functional unsubscribe facility.
Purely factual messages are likely to include:
- information sheets or updates;
- warranty/product safety information;
- invitations to free political or education gatherings; and
- email messages with links to non commercial, information websites.
What are the penalties for breaching the Act?
If a person or company in Australia breaches the provisions of the Spam Act, the Australian Communications Authority may:
- issue a formal warning; or
- issue infringement notices, (with fines of up to $110,000 per day; or
- initiate proceedings in the Federal Court (which can order injunctions or impose fines of up to $1,100,000 per day for repeat offender companies.
This news article was prepared by Minter Ellison Lawyers. Professional advice should be sought before applying the information to particular circumstances. Direct enquiries to: david.stewart@minterellison.com.
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