THE SPAM ACT 2003

Electronic messaging is an important means for business promotion as it allows simple and low cost communication. Nevertheless, the increasing volume of Spam, has interfered with the efficiency of electronic messaging.

In response, the Federal Government passed the Spam Act 2003 last December. The Act manifestly prohibits the sending of Spam. The aim of this Act is to preserve legitimate commercial communication activities and to encourage the responsible use of electronic messaging.

The Act imposes heavy financial penalties. If a business is found to be in breach of the Act, it is liable for a fine of up to $220,000. If the business re-offends, it may be subject to a maximum penalty of $1.1 million.

The penalty provisions will come into effect from 10 April 2004.

The Act covers commercial electronic messages :

1. originating in Australia that are sent to any destinations and
2. originating overseas that are sent to an address accessed in Australia.

HOW TO COMPLY WITH THE ACT

There are three simple steps to comply with the Act, namely:

1. obtaining the consent of the recipients,
2. providing the identity of the senders and
3. providing a proper unsubscribe facility for recipients of the message.

Consent

Commercial messages should only be sent when the senders have consent from the addressee. It can be either express consent or inferred consent.

Express consent can be given if a person specifically requests messages from the sender.

Consent may be inferred when the intended addressee has not directly asked for messages, but it is still clear that there is a reasonable expectation that the messages will be sent. The conduct of the addressee and the relationship between the senders and addressee are both very useful in determining whether the consent can be inferred.

Examples of where consent may be inferred from conduct are cases:

• where an addressee has provided their electronic address when they purchased goods and services.

• An addressee has provided their electronic address with the understanding that it would be used in day-to-day transactions, such as online banking or business and there is expectation that the email address may be used for additional communications, such as notification of related services or product.

• An addressee has published their electronic address in their own advertising. You may be able to send electronic messages to the addressee if the messages are related to the addressee’s intention of the published advertisement. For instance, an electrician advertises his email address. Under the Spam Act 2003, the electronic messages sent to him are not spam if they are related to electrical work. However if the advertisements state that "no spam" is to be sent to that address, then it cannot be inferred that the electrician has consented to receiving Spam messages.

Consent may also be inferred if there is an existing relationship between the sender and the addressee. Examples of where consent may be inferred from a existing relationship are:

• People who have purchased goods or services which involve ongoing warranty and service provisions.
• Shareholders.
• Magazine and newspaper subscribers.
• Registered users of online services.
• Financial members of a club.
• Bank account holders.
• Employers and employees.

A word of warning though. You cannot say that there is an existing relationship between your client and yourself, if there was a one off transaction. Eg:. If you sold a client a cup in a souvenir shop, you cannot say that your client has consented to receiving ongoing information regarding your shop.

The Act also bans the use of address-harvesting software for the purpose of sending spam. It is always advised that a sender should seek confirmation from an intended addressee whether the sender has the addressee’s consent.

Identity

The senders of commercial messages must provide sufficient information about their business identification and contact details. This can be done by amending templates that are used for emails or electronic messages.

If a sender uses another organisation ie., a third party, to send commercial electronic messages on the sender’s behalf, the sender must include accurate information about the sender’s business. The third party’s business information is not required under the Act.

The information for identifying the business and the business contact details must be reasonably likely to be accurate for a period of 30 days after the day on which the message is sent.

Unsubscribe facility

The sender must provide addressees the choice to unsubscribe from future commercial electronic messages. The facility needs to be easy to find and to use.

The unsubscribe facility must be reasonably likely to be functional for a period of 30 days after the day on which the message is sent.

Under the Act, a request to withdraw consent will be considered to have taken effect after five working days from the date on which the request was sent. Any commercial electronic message sent after the five day period may be considered to be in breach of the legislation.

THE AUSTRALIAN COMMUNICATIONS AUTHORITY

The Australian Communications Authority is responsible for enforcing the provisions of the Spam Act.

The ACA may choose to issue a formal warning, infringement notices, or a court action in relevant circumstances.

For more information on the Spam Act and how to comply with the Act, please contact our office. We will endeavour to provide help.

Comments from Tan and Tan Lawyers

With the implementation of the new Spam Act, it is hoped that we will all receive less SPAM. It is our belief that an addressee who does not unsubscribe from our mailing list after having received a number of emails from us prior to the implementation of the Spam Act is considered to have consented to receiving our newsletter. If that belief is wrong, please tell us immediately.

All of our newsletters include a functional unsubscribe facility, including email, telephone, fax and office address to allow the communication of the addressee's wishes to cease receiving correspondence from Tan and Tan Lawyers.

Any request to be removed from the Tan and Tan Lawyers email database will be acted on upon receipt of that advice, whether that advice is by email, fax, telephone or mail.

We hope you continue to receive our newsletters as we believe it provides a valuable yet free service to our clients and friends.

On the lighter side

Was He Dead?

An attorney, cross-examining the local coroner, queried, "Before you signed the death certificate had you taken the man's pulse?"

"No," the coroner replied.

"Well, then, did you listen for a heart beat?"

The coroner answered, "No."

"Did you check for respiration? Breathing?", asked the attorney.

Again the coroner replied, "No."

"Ah," the attorney said, "So when you signed the death certificate you had not taken any steps to make sure the man was dead, had you?"

The coroner rolled his eyes, and shot back "Counselor, at the time I signed the death certificate the man's brain was sitting in a jar on my desk. But I can see your point. For all I know he could be out there practicing law somewhere."