During a panel discussion this morning on the legislation and its impact on businesses, Clayton Utz IT lawyer Peter Knight said "The federal government's Spam Act 2003 may have been noble but in reality the legislation cannot be expected to make a great impact in reducing the growing proliferation of junk e-mail."
The Spam Act prohibits sending one or more "commercial electronic messages" having an "Australian link" unless certain exceptions apply. It also regulates the content of "commercial electronic messages" and the use of address harvesting software and harvested address lists.
An "electronic message" is an individual electronic message sent using an Internet carriage service or other listed service, to an e-mail account, telephone account, instant messaging account or any other account. This electronic message becomes a "commercial electronic message" when the listed purposes include an "offer to supply or sell goods or services, advertise or promote goods and services, or to advertise or promote a supplier or prospective supplier of goods and services."
Under the Act, an individual or company must not send a "commercial electronic message" unless the "relevant electronic account holder" to whom the message was sent consented, or there is a mistake by the sender, or the message is a "designated commercial electronic message."
One of the major weaknesses of the Act which Knight pointed out is the vagueness of the notion of "consent." The legislation requires a 2-step inquiry for "consent": that there is a business "or other" relationship with the recipient of the e-mail and that there is something about the person's conduct which gives rise to a belief that the person is consenting to the receipt of commercial e-mails.
Knight also scrutinised the definition of the "relevant electronic account holder" which may not necessarily be the addressee of the e-mail. According to Knight, "In the case of e-mail marketing this entity is defined by section 4 of the Act as the individual or organisation who is responsible for the relevant e-mail account."
Knight says "In the case of a corporate entity, "relevant e-mail account" may mean the e-mail address of the individual or the addresses maintained by the corporate. If it is the latter, who is responsible for the account - the CIO, the managing director, the marketing manager?"
"Legitimate businesses who have not been perpetrators of spam are going to have to come to grips with how the new legislation affects what they would undoubtedly regard as proper and reasonable marketing activities," Knight said.
Exempted from the Act are electronic messages that consist of "no more than factual information (including directly related comment)." This exception, however, does "not permit commercial promotion to be dressed up as factual information." Even the sending of trivial social or marketing information like an invitation to a seminar on the topic or an offer to provide information may take the electronic message outside the exception guidelines.
Also exempted are electronic messages authorised by a government body, registered political party, educational institutions, religious organisation or charitable institution relating to goods or services supplied by that body.
Knight said "Given that the bulk of spam is generated offshore this legislation will have little impact on the rising tide of unwanted e-mails. The legislation might help to shut down Australian spammers but they only account for a small percentage of spam."
Penalties under the Spam Act start from AU$11,000 for corporations with no prior record, AU$55,000 for corporations with prior record and AU$1.1M for corporations committing two or more contraventions in one day.
Persons outside Australia who send a message with an Australian link are also covered by the Act.