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The Spam Act 2003 (Cth) (Act) outlines the penalties imposed on individuals or corporations who send unsolicited commercial electronic messages in forms such as SMS, MMS, instant message or email.
Recent record fines under the Act demonstrate the Australian Communications Media Authority’s (ACMA) willingness to impose significant penalties when issuing infringement notices. They also illustrate the importance of organisations and individuals ensuring they do not send unsolicited messages in breach of the Act.
Recent fines by the ACMA include:
The ACMA found that this major Australian supermarket (Supermarket) had engaged in more than five million breaches of the Act when it sent marketing emails to consumers after they had unsubscribed from previous messages.
As a result the ACMA issued an infringement notice to the Supermarket imposing a pecuniary penalty of more than $1.03 million. The Supermarket also agreed to a three year court-enforceable undertaking to ensure it did not engage in further contraventions of the Act.
The penalty imposed on the Supermarket was the largest the ACMA has issued regarding breaches of the Act to date.
ACMA issued an infringement notice to various companies that this large Australian telecommunications provider (Telecommunications Provider) operates. The Telecommunications Provider paid $504,000 in pecuniary penalties for sending SMS and email marketing messages to consumers after they had unsubscribed, breaching spam laws two million times.
It was also found that the Telecommunications Provider sent emails that did not include a functional unsubscribe facility.
The amount paid by the Telecommunications Provider is the second largest amount paid in response to an infringement notice issued by ACMA for breaches of the Act.
The Act applies to commercial electronic messages. An electronic message sent by SMS, email or IM will be classified as a commercial electronic message if its purpose is to offer, advertise or promote the supply of goods or services.
The Act states that a person must not send, or cause to be sent, a commercial electronic message unless an exemption applies under the Act.
Exemptions apply to the following messages:
To avoid liability under the Act, it is important that individuals and corporations ensure that they:
Marketing messages may only be sent with the consent of the recipient. Consent may be expressed or inferred. Examples of expressed consent include providing instructions in person, ticking a consent box on a web page or filling out a form. Alternatively, inferred consent may be proven through the conduct and other relationships of the individual or organisation concerned.
Inferred consent may be proven if a person or organisation can satisfy each of the following:
Otherwise, permission may be inferred if an individual or organisation can satisfy all of the following:
It is important to note that even if a marketing list is purchased, responsibility for ensuring that permission is obtained is still required to be obtained by senders of commercial messages for any addresses used from such lists.
Senders of commercial messages must:
It is important to ensure that recipients of commercial messages are able to unsubscribe from electronic mailing lists. Under the Act, every commercial message must include an unsubscribe option that:
Examples of unsubscribe messages are provided by ACMA on its website.
Under the Act, individuals or businesses also cannot use, supply or acquire address harvesting software or lists created using address harvesting software.
Tina van Epen