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    New efforts to combat spam in Australia

    Thursday, May 26, 2005

    Although unlikely to stifle the amount of junk mail that hits most of our inboxes on a regular hourly basis, there have been several developments recently initiated in by the Federal Government and governments worldwide to combat the seemingly unrelenting onslaught of unauthorised electronic spam. The generation of spam is a problem not only for recipients, but also for commercial enterprises who wish to disseminate legitimate electronic commercial communications. It is important that IT savvy resellers and organisations generally, engage in lawful marketing practices when disseminating advertising information. This is not limited to compliance with spam laws; laws related to misleading and deceptive conduct and other important issues are relevant when provisioning marketing materials to the public and otherwise.

    Spam is illegal in a multitude of jurisdictions. In the United States, for example, the “Can-Spam Act” places a range of conditions on how commercial electronic messages can be sent, including but not limited to the conditions that opt-out instructions be provided to the recipient and graphic sexual imagery in the body or viewable area of commercial emails be hidden. The Australian spam legislation is couched in similar terms and includes three main requirements, namely that commercial electronic messages be sent with the consent of the recipient, that there be sufficient information to identify the sender and that a functional unsubscribe facility be incorporated into messages. Further, it is prohibited to aid, abet or otherwise be a party to a contravention of the legislation. The Australian Government has even gone so far as to establish a spam reporting tool known as “SpamMATTERS”, available via the Australian Communications and Media Authority website and which includes a facility for the reporting of spam via a Microsoft Outlook plugin.

    Breaches of spam legislation can result in substantial fines. In Australia, penalties for breach of the spam legislation known as the Spam Act can range up to $220,000 per day for first-time corporate offenders and up to $1.1 million per day for repeat offenders. The other major consequence of spam is the adverse media attention that can be generated towards the spammer.

    Recently, in the United States, the Federal Trade Commission shut down at least four illegal internet spam operations. In Illinois, the District Court ordered Cleverlink Trading et al to pay $400,000 as a result of sending e-mails in breach of the Can-Spam Act offering the opportunity to date “lonely wives”. Cases have also been made ordering spammers who illegally market adult sites, mortgage rates and software including via “zombie computers” and otherwise.

    Domestically, the Australian Communications and Media Authority has commenced investigations against companies who have allegedly engaged in “missed call” marketing practices in breach of Australian spam legislation. This type of marketing is viewed as one of the most notorious type of spam, particularly because the cost of the transmission of the spam message is paid by the unsuspecting recipient who returns the missed call and who also has to suffer, as is commonly the case, a recorded message promoting the spammers products.

    In another recent spam-related case on home soil, the Australian Communications and Media Authority executed a search warrant to investigate an allegation that an Australian resident was sending billions of unsolicited commercial electronic messages. The ACMA was tipped off by a foreign body.

    Spammers who attempt to utilise international servers to originate or bounce spam may still be caught out. In Australia, it is an offence to be involved in the sending of spam if the message originates or is commissioned in Australia being sent to any destination or that message originates or is commissioned overseas and is sent to an address accessed in Australia.

    Disclaimer: This column is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit www.arnotts.net.au.

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