SPAM Laws in Force for 2004
20 January 2004 at 12:01 pm
The Federal Government’s crackdown on unsolicited e-mails or SPAM is now enshrined in a law that comes into effect on 11 April 2004, 120 days after Royal Assent. The message to businesses and Not for Profit organisations alike is to ensure they are prepared!
And so the legislated grace of 120 days allows organisations time to adjust their practices where necessary.
For most, the impact of complying with the Act will be negligible. However, those who persist in sending spam will find themselves subject to penalties up to $1.1 million for a single day of infringements from 11 April this year!
The Spam Act 2003 prohibits the sending of unsolicited commercial electronic messages that have an Australian link. This means that commercial spam, sent by mobile phone as well as by e-mail, is not permitted to originate from Australia and is not allowed to be sent to Australian addresses, whatever their point of origin.
The Spam Act forms part of the Australian Government’s multi-layered approach to combating the global nuisance of spam. In addition to domestic legislation, this includes international negotiations, public education, the development of industry codes of practice and technical counter-measures.
The Australian Communications Authority (ACA) will be responsible for enforcing the legislation once its penalty provisions come into effect and is developing mechanisms to receive and deal with complaints about spam.
The ACA is working with online marketing companies and ISPs before that date to develop supporting industry codes and practices that will help combat the rising tide of spam.
The National Office for the Information Economy (NOIE) will also coordinate a 12-month information campaign about the legislation and about spam, commencing early in the new year. This will include public information and industry guides so that the contents of the Spam Act 2003 are clearly understood and to provide information on best practice in terms of sending commercial electronic messages.
Enforcement of the new law against overseas-based spammers will be dependent on the cooperation of other jurisdictions. Australia recently signed an agreement with the Korean Information Security Agency to cooperate on spam issues. Australia will also attend the OECD Workshop on Spam in February 2004, which will discuss the potential for international cooperative efforts and multilateral arrangements to combat spam.
There are four main aspects of the law that organisations need to be familiar with when considering their own messaging practices.
1. Recipient’s consent
Commercial electronic messages to be sent only with the consent of the addressee;
A business may have received the express consent from the account-holder, noting that in most instances the account-holder is likely to be the intended recipient of the message (the addressee). A business may also be able to infer consent based on its relationship with and the conduct of the addressee. These concepts are discussed in detail in section 1 below.
2. Accurate identification of the sender
Commercial electronic messages to be sent with accurate sender information;
Businesses are required to provide accurate identification (for example, their business name) and details about how they can be contacted. Details that are provided must be reasonably likely to be accurate for a period of 30 days after the message is sent.
3. Unsubscribe facility
Commercial electronic messages to be sent with a functional unsubscribe facility to allow addressees to unsubscribe from future messages from the business;
If a business receives a request to opt-out from future messages they must honour it within five working days from the date the request was sent (in the case of electronic unsubscribe messages) or delivered (in the case of unsubscribe messages sent by post or other ways).
4. Address-harvesting
Address-harvesting software and harvested-address lists will not be used for the purpose of sending spam.
Businesses must not use electronic address harvesting software, or lists which have been generated using such software, for the purpose of sending commercial electronic messages.
NOIE has prepared a DRAFT set of guidelines for discussion. If you would like an electronic version of the draft (it is a very large file of 2.5MB) just send us an e-mail to probono@probonoaustralia.com.au with the words SPAM guidelines in the subject line!
