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Spam Hampered by New Act |
On 11 April 2004 Australia's Spam Act 2003 came into effect. The legislation prohibits the sending of unsolicited commercial electronic messages, including e-mail and mobile phone generated messages (SMS). Those businesses that persist in sending spam messages after 11 April face penalties of up to $1.1 million per day. Under the Act, spam is not permitted to originate from Australia and is not allowed to be sent to Australian addresses, whatever its point of origin. The legislation will be enforced by the Australian Communications Authority (ACA). |
So what is spam? |
Generally spam refers to unsolicited electronic messages transmitted to a large number of recipients. They usually have a commercial focus, promoting or selling products or services; and often have one or more of the following characteristics:
1. Sent by automated means and distributed in an untargeted or indiscriminate manner;
2. Contains offensive material;
3. Promotes illegal, fraudulent or deceptive activity;
4. Collects or uses personal information
5. Sent in a manner so that the sender of the message cannot be identified;
6. Does not allow the addressee to opt out of receiving future messages;
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| Does bulk e-mail = spam? |
Not necessarily; however, if it has one or more of the above characteristics, it probably is spam. |
What is exempted from the definition of spam under the Act? |
Designated commercial electronic messages are not spam if:
1. The message consists of no more than factual information, and includes any or all of the following additional information:
a) the name, logo and contact details of the individual/organisation authorising the sending of the message;
b) the name and contact details of the author;
c) if the message is sponsored, the name, logo and contact details of the sponsor.
2. The sending of the message is authorised by any of the following:
a) a government body; or
b) a registered political party; or
c) a religious organisation; or
d) a charity or charitable institution; and
e) the message relates to goods or services, and the body is the supplier or prospective supplier of the goods and services concerned.
3. The relevant electronic account holder or user(s) consented to the sending of the message. Consent is defined as:
a) express consent; or
b) consent that can reasonably be inferred from the conduct, business or other relationships of the individual or organisation concerned.
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| What content does spam contain? |
Pornography and 'get rich quick' schemes are the most dominant categories of spam. |
What major problems are caused by spam? |
According to the Explanatory Memorandum to Spam Bill 2003, unsolicited electronic messages or "spam" are reaching plague proportions and growing exponentially. It is causing immense frustration and reduced productivity for users, businesses and government agencies. Some of the more prominent issues are:
1. User Confidence and Network Integrity
Today, the problem of spam has reached a point where it is having a negative effect on users' confidence in using e-mail. There are concerns regarding the deleterious impact of spam on the global e-mail network with some commentators predicting that the continuing proliferation of spam could mean the end of e-mail as an effective form of communication.
2. Privacy
There are significant privacy issues surrounding the manner in which e-mail addresses and personal information are collected and handled. It is not uncommon for address collectors to covertly harvest e-mail addresses from the Internet, as users visit certain sites, and buy and sell them in bulk without the knowledge or consent of the owner.
3. Content
Some regulatory agencies estimate that 50% of unsolicited commercial e-mail contains fraudulent or deceptive material. A considerable amount of spam promotes pornography, illegal gambling services, pyramid selling, get rich quick schemes or misleading and deceptive business practices. There are obvious concerns regarding minors receiving spam that is pornographic, illegal or offensive.
4. Spoofing
One deceptive practice that has been gaining notoriety is spoofing. Spoofing involves the forgery of an e-mail header so that the message appears to have originated from an entity or location other than the actual source. Spammers may use spoofing to route spam through a reputable organisation in an attempt to entice recipients to open and respond to their messages. There are significant costs to the victims in terms of damage to commercial reputation as well as time and resource costs in rectifying this damage.
5. Financial costs
The dollar cost of spam is usually borne by Internet users (and/or employers), through increased download times and lost productivity. Spammers themselves, on the other hand, bear relatively small costs in sending these messages, since the cost of e-mail is exceedingly minor compared with traditional forms of mail or telephone communication. The extremely low cost of sending spam means that even a small fraction of responses to an e-mail may make it a profitable endeavour. Because of this profitability, spam will continue to proliferate.
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| What specific acts does the Spam Act 2003 prohibit? |
1. Sending unsolicited commercial electronic messages that have an Australian link, unless:
- they include accurate information about the individual or organisation who authorised the sending of the message; and
- they include a functional unsubscribe facility.
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| 2. Supplying, acquiring or using address-harvesting software or supplying, acquiring or using a harvested-address list. |
What is address-harvesting software? |
Address harvesting software is defined as software that is specifically designed or marketed for use for:
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1. searching the Internet for electronic addresses; and
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| 2. collecting, compiling, capturing otherwise harvesting those electronic addresses. |
How will the Spam Act be enforced? |
The main remedies for breaches of the Act are civil penalties and injunctions. These prohibitions may result in a substantial monetary penalty. The Act does not provide for criminal sanctions. The Act will be enforced by the ACA. The enforcement may include:
- formal warnings;
- a written undertaking given by a person in connection with the prohibitions;
- infringement notices;
- injunctions (if ACA successful upon application to the Federal Court); or
- monetary penalties, monetary compensation for victims, recovery of financial benefit obtained through the use of spam (if ACA successful upon application to the Federal Court).
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| What can businesses do about spam? |
Some users simply manually delete unsolicited e-mail from their inbox. There are several types of technical tools that will assist in filtering or blocking unwanted e-mail messages. Filtering, anti-virus and firewall products use strategies to intercept spam. These products may be applied either by ISPs or corporate networks at the level they receive mail or by end users. |
Spammers are resourceful in avoiding detection by account hopping (changing to new e-mail accounts frequently) or by avoiding words commonly used in spam when drafting their message in order to bypass content filters and firewalls. Increasingly spam messages are composed to capture the target group's attention by the use of innovative subject lines and message text that entices the recipient to open the e-mail and/or visit a website. |
What other legislation might apply to spam? |
1. The Telecommunications Act 1997 contains additional provisions regarding commercial electronic messages. |
2. The Interactive Gambling Act 2001 prohibits certain forms of online gambling services and the advertising of those services. |
3. The Therapeutic Goods Act 1989 deals with misleading therapeutic goods-related content. Note that it only applies where the content is hosted in Australia, and not content originating overseas. |
4. The Trade Practices Act 1974 prohibits false and misleading claims about goods and services. |
5. The Crimes Act and the Criminal Code may apply to spam in certain situations. |
The text of the Spam Act 2003 may be found at http://www.findlaw.com.au/Legislation/docs/33259.doc |
