Anti-spam legislation effective, claims ACMA

The Australian Communications and Media Authority (ACMA) said that since the Act came into operation in April 2004, the proportion of global spam coming out of Australia had "fallen dramatically" and now sat at less than one percent.

The Act's effectiveness meant "there does not appear to be any need or justification for significantly amending the legislation, as the current legislative regime is adequate to control and reduce spam emanating from Australia".

Efforts should now focus largely on encouraging countries that do not yet regulate spam to tackle the problem with legislation, the ACMA said.

The ACMA made its comments in a submission -- posted on a Department of Communications, Information Technology and the Arts Web page on Friday afternoon -- to a scheduled review of the Act by the responsible Minister, Senator Helen Coonan.

The government committed to the review and issued a discussion paper on 15 December last year. Sixty-four parties made submissions, to be considered in a report to be tabled in federal parliament this year.

"International anti-spam organisations report that several known global spammers formerly based in Australia have ceased operating or moved their operations out of the jurisdiction and that Australia has dropped from 10th to 23rd on the list of spamming nations," the ACMA said.

The ACMA said its anti-spam efforts had led it to advise about 500 organisations to amend their practices, issue nine formal warnings, give infringement notices to five businesses and accept court-enforceable undertakings from four businesses.

The organisation had also initiated proceedings in the Federal Court in Perth against Clarity1 Pty Ltd and its sole director Wayne Robert Mansfield, alleging the organisation had sent out at least 56 million unsolicited commercial e-mails since the Act came into force. The case kicked off in Perth on 3 March.

The ACMA said minor gaps in existing legislation that needed to be dealt with include:

• Several specific practices of professional spammers that need to be prohibited.
• The ACMA's ability to provide evidence in international enforcement activities.
• "Several areas of remaining uncertainty for responsible business in the areas of 'consent' and SMS marketing".

Specific techniques used by professional spammers that needed to be prohibited included the use of misleading or deceptive e-mail headers, subject lines or sender fields and commercial e-mail relayed via botnets, the ACMA said.

It also said future funding from the government should be sufficient to allow its officers to respond to the convergence of spam, fraud and cybercrime. The ACMA should also continue to work with bodies such as the Australian High Tech Crime Centre (AHTCC) and the Australian Computer Emergency Response Team (AusCERT) in this area, it said.

The ACMA said SMS had accounted for 10 percent of all formal complaints about spam and the proportion had been increasing steadily for the last 18 months. The complaints related increasingly to the delivery of premium mobile services such as ringtones.

Telstra is among the businesses who have complained that some existing definitions in the Act "may restrict some forms of legitimate and necessary customer communications".

They complained the restrictions may encompass messages such as a welcome to a new customer that included an explanation of how to use their new service, or notifications of deals and special offers.

"In Telstra's experience, failure to provide messages of this type can damage customer relationships and create frustration with the customer's ongoing use and enjoyment of their service", the carrier said in its submission.

While it "firmly" supported the policy intentions underlying the Act, the carrier said the legislation "does not currently make clear the real and significant distinction between unwanted customer communications and what it considers to be legitimate service-related communications between businesses and their customers.

"This lack of clarity is currently hindering both businesses and customers by restricting the methods by which businesses are able to communicate with their customers".