Gilbert + tobin - Gilbert and Tobin

18.2 Spam
The Spam Act 2003 (Cth) (Spam Act) prohibits “unsolicited
commercial electronic messages” with an “Australian link” from
being sent or caused to be sent.
Avoid the pitfalls: A message does not have to be sent
out to numerous addresses, or in bulk, to be in breach of the
Spam Act. Businesses can also be responsible for breaches
of the Spam Act by third-party contractors.
A commercial electronic message (including email, SMS,
multimedia messages, instant messages or any other direct
electronic messaging) is one that, considering the content of the
message, the way in which the message is presented and the
content that can be accessed by following any links, phone
numbers or contact information in the message, could be
construed to:
+ + offer, advertise or promote the supply of goods, services, land
or business or investment opportunities;
+ + advertise or promote a supplier of goods, services, land or a
provider of business or investment opportunities; or
+ + assist or enable a person to dishonestly obtain property,
commercial advantage or other gain from another person.
This means that a message does not have to be sent out to
numerous addresses, or in bulk, to potentially be in breach of the
Spam Act.
A message has an “Australian link” if it originates or was
commissioned in Australia, or originates overseas, but was sent to
an address accessed in Australia.
The Australian Communications and Media Authority (ACMA) is
responsible for enforcing the Spam Act.
The Spam Act requires that electronic messages that have some
commercial purpose under the test referred to above may only be
sent if the following requirements are satisfied:
––
Consent – the message must be sent with the recipient’s
consent.
––
Sender identification – the message must contain accurate
information about the person or organisation that authorised
the sending of the message and how to contact them.
––
Unsubscribe – the message must contain a functional
“unsubscribe” facility to allow the recipient to opt out of
receiving messages from that source in the future. Unsubscribe
requests must be honoured within five business days.
If a business engages a third party to send a commercial electronic
message/campaign on its behalf, the business needs to be aware of
its legal obligations, as it may be found responsible for any
contraventions of the Spam Act by the third party.
The Spam Act also prohibits the use, supply or acquisition of
address harvesting software and any list of electronic addresses
produced using such software.
Australia’s e-marketing and internet industries have developed
separate, complementary codes of practice to supplement the
Spam Act. The codes elaborate on the requirements of the Spam
Act and provide procedures to enable organisations to comply
with the Spam Act and handle spam complaints. Some of the
relevant codes include the e-Marketing Code of Practice, the Best
Practice Marketing Guidelines for industry, and the Internet
Industry Spam Code of Practice developed by the Internet
Industry Association. Businesses involved in marketing or providing
premium mobile services should also be aware of the
requirements of the Mobile Premium Service Code of Practice.
18.3 The Do Not Call legislative framework
The Do Not Call Register legislative framework consists of:
+ + the Do Not Call Register Act 2006 (Cth) (DNCR Act);
+ + ACMA determinations, which set out the practical operation
of the register;
+ + the Do Not Call Register Regulations 2006 (Cth); and
+ + the Telecommunications (Do Not Call Register)
(Telemarketing and Research Calls) Industry Standard 2007
(Cth).
It is to be noted that the requirements of the new Australian
Consumer Law and in particular the provisions that relate to
unsolicited consumer agreements (discussed in section 11) must
also be complied with.
The Do Not Call Register provides consumers in Australia with
the choice to “opt-out” of receiving unwanted and unsolicited
telemarketing calls through a regulatory framework under which
their “opt-out” is recorded on a centralised Do Not Call Register.
PAGE 40