Overview:
Commencing April 11, 2004, Australia’s Spam Act 2003 is one of the earliest opt-in laws surrounding commercial email. The law bans the sending of unsolicited commercial emails containing an Australian link. The act also pertains to instant messaging and telephone accounts. It states that the advertiser in a commercial message must provide identifying contact information as well as a working unsubscribe mechanism. In addition, address-harvesting software, as well as lists compiled using address-harvesting software are banned. The governing body in Australia responsible for enforcement is the Australian Communications and Media Authority(ACMA). Violators of Australia’s Spam Act typically incur civil penalties and injunctions, the severity of which are based on previous offenses and damages incurred by victims. Government bodies, registered political parties, charities, religious organizations and educational institutions are exempt. The Act underwent a mandatory two-year review in 2005, where few amendments were made.
Enforcement Effects:
According to the ACMA, as a result of Spam Act 2003, 200 businesses have since been required to ammend their email practices, five businesses have been fined over civil penalties totalling $20,ooo, and three businesses have provided enforceable undertakings. The ACMA has recently begun a federal case under the act against three companies for allegedly sending mobile users unsolicited SMS messages concerning Australian dating sites, seeking fines of up to $1.1 million per day. A hearing has been set for February 6.
Industry Self-Regulation:
The Australian eMarketing Code of Practice, coordinated by the Australian DMA outlines best practices for Australian businesses sending commercial email. It applies to all companies who use email or mobile as their main form of marketing, as well as third parties and affiliates who send on their behalf.
The Internet Industry Association’s Spam Code of Practice outlines regulations for ISPs and email service providers which are enforceable by the ACMA under the Spam Act. Compliance with this code provides ISPs and ESPs legal protection under certain statutes.
Relevant Sources and Resources:
Current Spam Act 2003 (pdf): full text of the legislation
ACMA: Spam and e-Security page
EFA Australian Spam Laws: includes EFA 2006 Review and Analyses of the Spam Act 2003
OECD Task Force on Spam: includes links to the laws, government enforcement contacts, organization pages and education and awareness initiatives.
White SW Computer Law: Updates and an informative history the Spam Act and its enforcement from an Australian law office specializing in IT and intellectual property.
Email Marketing Reports: Outlines links, reviews, and relevant documents pertaining to Australian anti-spam legislation.
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