Legal comment by Mark Illidge of Hinterland Lawyers

May 2005

In an attempt to curb the incidence of spam, or electronic 'junk mail', the Australian Communications Authority (ACA) has introduced legislation, required over 200 companies to change their practices, and fined 3 of them. The Spam Act (the Act) came into effect in April 2004. The Act renders it illegal to send, or cause to be sent, unsolicited commercial electronic messages (CEMs) that have an Australian link.  It defines a CEM as any electronic message that offers, advertises or promotes the supply of goods, services, land or business or investment opportunities; or that advertises or promotes a supplier of goods, services or land; or a provider of business or investment opportunities. An electronic message that assists a person to dishonestly obtain property, commercial advantage or other gain from another person is also defined as commercial.  It applies to emails, mobile phone text messages (SMS), multimedia messaging and instant messaging.

In March 2005 the ACA launched the Australian eMarketing Code of Practice, which establishes comprehensive industry-wide rules and guidelines for the sending of CEMs in compliance with the Act.  The code also provides a framework by which industry can handle complaints about spam and monitor industry compliance with code provisions. 

The ACA has fined an online car dealer $6600 for breaching the Act.  The car dealer sent text messages after copying the recipients' mobile phone numbers from classified advertisements. The ACA determined that the people who had published their phone numbers had done so for the sole purpose of being contacted by potential buyers and as such did not consent to receiving commercial SMS messages from the company in question.

The Internet Industry Association also has an Industry Code of Practice in draft form.  This code will require internet service providers and email service providers to configure their own networks to make them less vulnerable to spam, provide customers with information and solutions to help them avoid spam, and give reasonable assistance to those investigating illegal spam activity.

For more information visit www.aca.gov.au or www.dcita.gov.au 

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