AU government defends spam assault
A spokeswoman for the Minister for Information Technology, Daryl Williams, told ZDNet Australia it was too early to determine the impact of the US legislation as it had only come into force at the start of the year. She added that comparisons between the US legislation and its Australian counterpart -- due to take effect from 10 April -- were not relevant as Australia was adopting a different approach.
"It is expected that within one year of the commencement of the penalty provisions of the Act, Australian-originated spam will be uncommon," she said. "The Australian government's approach to combating spam combines domestic legislation with international negotiation, public education the development of industry codes of practice and of technical countermeasures".
The federal government's comments came after MX Logic, a maker of mail-filtering software, released figures claiming only 3 percent of bulk commercial e-mails sent in the US had a valid US postal mail address and a legitimate unsubscribe link -- two essential tenets of the Can Spam Act.
Furthermore, according to the spam-filtering company Brightmail, as much as 60 per cent of US e-mail sent in January was spam, up 2 per cent increase on December 2003 statistics.
The Australian Act is due to come into effect on 10 April 2004, upon the expiration of the 120 day grace period, a proviso of the Act designed to give companies time to phase out spamming as part of their online marketing strategy.
The federal government signed a Memorandum of Understanding with South Korea last October to facilitate the exchange of information and intelligence about spam-related activities; a deal that has provoked interest from other countries.
"We are confident that we can stop any significant amounts of spam being sent from Australia," Williams' spokesperson said. "Dealing with incoming spam will require international arrangements and agreements and Australia is working hard with other countries to foster the development of those".
The Spam Act permits legitimate uses for electronic messages, discriminating against those that are uninvited and intended for commercial marketing.
A document released by the National Office of the Information Economy (NOIE) explains that companies must obtain the recipients' consent, either express or inferred, to legally dispatch commercial electronic messages and that the identity of the business responsible for sending the message must be clearly stated.
Additionally, all commercial messages that are sent legally must have an 'unsubscribe' facility and that unsubscribe requests are to be dealt with promptly. The Act also prohibits address harvesting software and encompasses messages sent via e-mail, SMS, MMS and instant messaging.
The department says that most businesses will not be affected by the Act. However, those who persist in sending spam will find themselves subject to penalties of up to AU$1.1 million for a single day of infringements.
According to the Act, marketing companies still reserve the right to purchase or lease contact lists obtained via legal methods. Thus, Internet users who sign up to receive mail from one marketing source may also be subject to receiving mail from other sources that have purchased their contact details.
However, the department maintains that the legislation is still applicable in these situations.
"Lists would need to have been generated where someone had agreed to their address being passed on for marketing purposes, or where there is inferred consent because they had conspicuously published their address," said the spokeswoman.
The ACA has been appointed the principal guardian of the Spam Act, a role that requires it to issue penalties for breach and collaborate with online marketing companies and ISPs to develop supporting industry codes and practices to complement the new law.
Penalties for breach of the legislation include formal warnings; a punishment appropriate in cases where the ACA is convinced that a breach was 'inadvertent' and is satisfied that the act would not be repeated, with more serious violations of the Act provoking the issue of infringements.
In cases involving severe contravention of the legislation, the ACA may also initiate court proceedings and the business in question may be forced to surrender any monetary benefits it received as result of the illegal advertising.
Additionally, the Act states that any person who may have suffered a loss or damages as result of the illegal spamming may apply to the court for an order of compensation.