What is the Spam Act 2003 (Cth)?
The Spam Act 2003 (Cth) (‘The Act’) sets up a scheme for regulating commercial email and other types of commercial electronic messages. In today’s day and age, the sending and receiving of commercial messages advertising one’s goods and services is becoming more and more common and thus warrants regulation.
The Act is divided into four main parts:
Sending commercial electronic messages
Under the Act, commercial electronic messages are those with a purpose to:
- offer to supply goods or services;
- advertise or promote goods or services;
- advertise or promote a supplier, or prospective supplier, of goods or services; or
- offer to supply land or an interest in land;
- advertise or promote land or an interest in land;
- advertise or promote a supplier, or prospective supplier, of land or an interest in land;
- offer to provide a business opportunity or investment opportunity; or
- advertise or promote a business opportunity or investment opportunity; or
- advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or
- assist or enable a person, by a deception, to dishonestly obtain property belonging to another person; or
- assist or enable a person, by a deception, to dishonestly obtain a financial advantage from another person; or
- assist or enable a person to dishonestly obtain a gain from another person; or
- a purpose specified in the regulations.
The three critical points regarding the sending of commercial electronic messages are that:
- unsolicited messages must not be sent;
- commercial electronic messages must include information about the individual or organisation who authorised the sending of the message; and
- commercial electronic messages must contain an unsubscribe function.
Address-harvesting software and harvested-address list
Address-harvesting software refers to software that is specifically designed or marketed for use for:
- searching the internet for electronic addresses; and
- collecting, compiling, capturing or otherwise harvesting those electronic addresses.
Harvested-address list refers to:
- a list of electronic addresses; or
- a collection of electronic addresses; or
- a compilation of electronic addresses;
where the production of the list, collection or compilation is, to any extent, directly or indirectly attributable to the use of address-harvesting software.
Address-harvesting software must not be supplied, acquired or used, and an electronic address list produced utilising address harvesting software must not be supplied, acquired or used.
Penalties under the Act include:
- Pecuniary penalties
In determining the penalty, the Court must have regard to all relevant matters, including:
- The nature and extent of the contravention;
- The nature and extent of any loss or damage suffered as a result of the contravention; and
- The circumstances in which the contravention took place; and
- Whether the person has previously been found to be engaged in similar conduct; and
- If appropriate, whether the person has previously been found by a foreign court to have engaged in similar conduct.
- Infringement Notices
The purpose of these is to provide an alternative to the institution of proceedings in the Federal Court. A notice may be issued where there are reasonable grounds to believe that a person has, on a particular day, committed one or more contraventions of a civil penalty provision. The notice must be issued within 12 months after the day the alleged contraventions took place, and must be in the form under Schedule 3 of the Act. The Act also details the penalty units payable for different scenarios. If the penalty is paid in accordance with the notice, any liability for the alleged contraventions is discharged.
The Federal Court may grant injunctions relating to contraventions of civil penalty provisions. Restraining injunctions, performance injunctions and interim injunctions may be made be granted dependent on the circumstances.
- Pecuniary penalties
Outside of court, the Australian Communications and Media Authority may accept a written undertaking by a person with a matter relating to commercial electronic messages; or address-harvesting software.
If ACMA believes there has been a breach of any of the terms of the undertaking, they may apply to the Federal Court for an order:
- an order directing the person to comply with that term of the undertaking;
- an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
- any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
- any other order that the Court considers appropriate.
How can we help?
If you would like more information or you have a commercial matter which requires our assistance, contact our office on (07) 3036 0649 or email email@example.com.
This publication is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this update to specific issues or transactions. For more information or specific advice on your circumstances please contact firstname.lastname@example.org.