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Optus fined $110,000 for sending commercial electronic messages to customers without accurate sender information |
On 14 January 2009, the Australian Communications and Media Authority (AMCA) issued Optus Networks Pty Limited (Optus) with two infringement notices imposing penalties totalling $110,000 for contravention of the Spam Act 2003. |
The Spam Act regulates commercial electronic messages. Commercial electronic messages include commercial emails, text messages, picture messages and instant messaging messages. |
The Spam Act sets out the following three ICU elements that commercial electronic messages must contain:
- Identify – messages must contain clear and accurate information about the person that authorised the sending of the message;
- Consent – messages must be sent with the recipient's consent. The consent may express, or it may be inferred from conduct and existing business or other relationships;
- Unsubscribe – messages must contain a functional unsubscribe facility to allow the recipient to opt out from receiving messages in the future.
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| The infringement notices were issued because Optus did not accurately indentify itself as the source of the text messages. |
Optus sent text messages to 20,000 of its mobile phone customers advertising its OptusZoo service. The text messages did not identify the sender as Optus, but merely contained 966 in the sender information field. |
Optus assumed that recipients would make the connection between 966 and ZOO – being some of the letters that correspond to those number on a telephone keypad. However AMCA did not consider 966 to be sufficient identification as the numbers 966 could be used to represent any number of permutations on a telephone keypad. |
What do we learn, what do we do? - Implement ICU to avoid legal ICU |
If you send commercial electronic messages, you should ensure that you have checked that they comply with the three elements – ICU - Identify, Consent, Unsubscribe – and that you have measures in place to ensure compliance with the requirements of the Spam Act. If you do not, you could face the expense of not only a substantial fine, but also legal fees in responding to an ACMA investigation and in defending a prosecution. |
As always, prevention is better than cure. Why end up in a legal Intensive Care Unit when all you needed was to apply ICU – Identify, Consent, Unsubscribe. |
For any further assistance please contact Peter McNamara on 02 9299 2223 |
