Spam Law - Australia

Spam is the colloquial term for junk mail which is delivered electronically. Electronic junk mail can be sent by email, SMS (short message service), MMS (multimedia message service), or IM (instant messaging).

Australia introduced anti-spam law in 2003, thus it is called "Spam Act 2003". The Act does not distinguish between bulk emails or individual, "one off" emails - our spam law covers both.

Even though the Act itself is just short of 60 pages in length, it can be summarised, and explained, quite simply.

Australian anti-spam laws explained

1) The Act sets up a scheme for regulating commercial e-mail and other types of commercial electronic messages.

This simply states the purpose of the Act.

2) Unsolicited commercial electronic messages must not be sent.

Quite simply, you must not send commercial messages to anyone unless they have agreed to receive such messages from you. If you use a mailing list subscription system on your website, you should ensure it has "opt-in" functionality. That is, after the user adds their details, they receive a confirmation which they must action. This prevents abuse of the mailing list subscription system.

3) Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message.

Any messages you do send should include the senders name, business name, address, and contact information.

4) Commercial electronic messages must contain a functional unsubscribe facility.

All messages must provide a way for the recipient to unsubscribe from your database. Once they have unsubscribed, you must not send them further messages. Some systems may be setup as "opt-out" so you confirm the removal before it takes effect.

5) Address-harvesting software must not be supplied, acquired or used.

This refers to software which "crawls" websites and "harvests" email addresses for the purposes of adding them to a "spam list". Not only must you not use any such software, but it is against the Act to even purchase, download or share such software.

6) An electronic address list produced using address-harvesting software must not be supplied, acquired or used.

Further to the previous point, you must not purchase any mailing list which has been acquired using harvesting software. You've probably seen the emails offering to sell you a CD-Rom with millions of email addresses? Guess where those email addresses originated? If you do purchase and such databases, you must not distribute that information - or use it yourself, or course.

Consequences

Breaches of the Act may result in civil penalties and injunctions, however while the chance of an entity or person being prosecuted for sending spam at the moment is slim, there are other very serious consequences to consider. For example, your domain name may be blacklisted, thus restricting your electronic communication. Effecting the removal of a blacklisted domain from some of these databases can be very difficult, and so the legislation should be used as a guideline and any breaches should be avoided.

If you are a legitimate Australian business and conducting yourself in a respectful manner towards other Internet users, applying the legislation should not prove difficult or an encumbrance upon your marketing strategy.

Please note: The Telecommunications Act 1997 contains relevant legislation that can be applied to perpetrators as well.

The Australian connection

Don't think that if you are an Aussie business, but you use an overseas account to send unsolicited email, you can get away with it. The Act covers any Australian based business or individual, regardless of where the spam originates.

Likewise, if your business has a branch in Australia, and your (eg) United States based head office decides to spam your Australian customers, your Australian management may be held responsible.

We are very lucky in Australia. Not only are our laws guarding against abuse of unsolicited electronic junk, but the majority of businesses here are mindful of how damaging spam can be to a businesses reputation, as well as how annoying it is to people to have to constantly monitor and remove unwanted messages.

Enforcement

The department responsible for enforcing Australia's anti-spam legislation is the ACMA (Australian Communications and Media Authority).

There are several methods by which you can submit spam reports to the ACMA, including downloading software developed by ACMA called SpamMATTERS which is free to download and use. It works with both Microsoft Outlook and Outlook Express.

Currently there are over 290,000 users registered who are helping to take action against spammers, with over 41 million spam reports since the program became available.

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