Australia enacted the Spam Act 2003 in 2004 to combat the growing volume of unsolicited messages. It is illegal under the Spam Act to send certain unsolicited emails and severe penalties may apply for those that do.
What is spam?
As you are probably well aware, the term “spam” refers to electronic “junk mail”. You are prohibited under the Spam Act to send an electronic message to a recipient containing an invitation to do business without the consent of the message recipient.
What constitutes consent?
Consent can be obtained either expressly or by inference. Express consent is obtained via conduct such as newsletter subscription, ticking a box, completing a form or over the telephone. Inferred consent may be established through an existing relationship (business or other) or through conspicuous publication of a work-related Email address.
What does the Spam Act cover?
The Spam Act covers messages sent via Email, Short Message Service (SMS), Multimedia Message Service (MMS) and Instant Messaging Services (such as Microsoft Instant Messenger). The Spam Act does not cover voice telemarketing, internet pop-ups or messages sent via facsimile.
Who is exempt from the Spam Act?
Government bodies, non-government organisations, registered political parties, charities, religious organisations and educational institutions are partially exempt. Despite the exemption, partially exempted bodies must meet the identity requirement set out below.
Complying with the Spam Act
If your business practices include the sending of electronic messages, you must ensure that:
- You can establish that you have obtained consent to send a commercial electronic message to a recipient
- A commercial electronic message sent by you to a recipient accurately identifies yourself or your organisation as the authorised sender of the message
- A commercial electronic message sent by you to a recipient contains an ‘unsubscribe’ facility
The main penalties imposed are civil fines and injunctions. However, formal warnings, infringement notices and undertakings are also common. Monetary penalties of up to $1.1 million per day and orders for the forfeiture of profits and compensation can be imposed upon a party that is in breach of the Spam Act.
This article was supplied by Jamie White, Intellectual Property and Internet Lawyer and a Registered Trade Marks Attorney with Ffrench Commercial Lawyers.