Gilbert + tobin - Gilbert and Tobin

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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
The DNCR Act prohibits “telemarketing calls” from being made to a number entered on the Do Not Call Register, unless: + + the recipient of the call (the account holder or their nominee) has consented to the making of the call; or + + the telemarketer “washed” the number against numbers on the Do Not Call Register within the preceding 30 days and the number was not then identified as a “do not call” number (this enables a database check to be relied upon for 30 days, therefore a registration would not be fully effective for 30 days); or + + the call is otherwise exempted as a “designated telemarketing call”. PAGE 41
Page 1 and 2: 2013 Gilbert + Tobin Doing business
Page 3 and 4: about gilbert + Tobin Gilbert + Tob
Page 5 and 6: 1. Overview of Australia’s govern
Page 7 and 8: 2. Foreign investment review Austra
Page 9 and 10: 3. Establishing a business presence
Page 11 and 12: 4. Acquisitions As part of its entr
Page 13 and 14: Issue Takeover bid Scheme of arrang
Page 15 and 16: 5.2 Protection of minority sharehol
Page 17 and 18: 6. Raising capital Under the Corpor
Page 19 and 20: In some cases, FFSPs are able to re
Page 21 and 22: operation throughout Australia on 1
Page 23 and 24: the DTA to revise down the domestic
Page 25 and 26: 10. Competition law The Competition
Page 27 and 28: (e) Third line forcing (sections 47
Page 29 and 30: 11. Fair dealing and consumer prote
Page 31 and 32: Services Due care and skill: guaran
Page 33 and 34: 12. Employment law Australia’s na
Page 35 and 36: 13. Intellectual property In Austra
Page 37 and 38: 14. environmental law Each Australi
Page 39 and 40: 16. native title and indigenous her
Page 41: 18. Privacy, spam and the Do Not Ca
Page 45 and 46: The legal profession in Australia i
Page 47 and 48: Glossary Regulatory authorities, tr

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