The plan to can spam in Australia

By Chris McLeod, Paul Noonan and Jacqueline Cole.

Key Points:

Australian businesses need to review their electronic marketing now as a result of the Spam Act. From 11 April 2004, businesses and other organisations which send electronic messages will need to comply with the Spam Act 2003.

The Act applies to all commercial business operations as well as the fly by night operators typically associated with spam. It regulates the sending of commercial electronic messages (either singly or in bulk) such as email and SMS even if the commercial purpose is only one purpose of the message.

The rules in a nutshell

• A person or organisation must not send a "commercial electronic message" unless the sender:
  • has the express or implied consent of the recipient
  • includes information about the individual or organisation who authorised the message to be sent
  • includes a functional unsubscribe facility in the message.
• An "electronic message" includes an email, SMS or instant message but excludes voice calls using a standard telephone service (which may still be covered by other laws).
• You will not need consent to send messages containing purely factual information but will if the factual messages also have a commercial purpose. All factual messages must still identify and provide contact information about the sender.
• The supply, acquisition or use of address-harvesting software and address lists produced using such software is prohibited.
• The ACA has broad powers to investigate non-compliance with the Act.

Does your business send commercial electronic messages?

For a message to be a "commercial electronic message", it must:

• be an "electronic message"
• have a commercial purpose
• have an Australian link.

An "electronic message" is a message sent using an Internet carriage service or any other listed carriage service, to an email account, an instant messaging account, a telephone account or a similar account (regardless of whether the account exists or the message arrives). The definition includes email messages, SMS messages and new technologies such as multimedia messaging services but excludes voice calls using a standard telephone service (which may still be covered by telemarketing laws).

An electronic message will be "commercial" if its content (including content which can be located by links and phone numbers set out in the message) and presentation are such that the purpose of the message includes:

• advertising, offering to supply, or promoting goods, services, land or a business or investment opportunity;
• assisting or enabling a person by deception to dishonestly obtain property, a financial advantage or a "gain" from another person.

The most obvious cases of a message having an "Australian link" are when the message originates in Australia or when the sender is physically present in, or has central management and control located in Australia.

However, an Australian link will also be established when the recipient account holder is an individual who is physically present in Australia when the message is accessed, an organisation that carries on business or activities in Australia when the message is accessed, or if the computer, server or device which the recipient uses to access the message is located in Australia.

When will electronic messaging be allowed under the Spam Act?

A commercial electronic message may be sent if all of these criteria are present.

• The recipient of the message has consented to the message being sent. Consent may be express (for example if the recipient has subscribed to the sender's electronic advertising mail list or voluntarily entered into an agreement to have their electronic address provided to third parties for marketing purposes). Consent can also be inferred from the conduct and business and other relationships of the recipient. For example, if a person has an existing business relationship with the sender and has knowingly and directly provided the sender with an electronic address, it would be reasonable to infer that the person has consented to receiving commercial electronic messages from the sender.
• The message includes a functional unsubscribe facility which enables the recipient to notify the sender that the recipient does not wish to receive any future messages of this type. The unsubscribe facility must be a valid means of unsubscribing for at least 30 days after the message is sent and must be capable of receiving a "reasonable number" of unsubscribe responses to the same initial message.
• The message includes clear and accurate information (including contact information) about the individual or organisation who authorised the message to be sent.

Defences

The sender of a prohibited message will have a valid defence to a breach of the Act if:

• the recipient consented to the message
• the sender could not reasonably have known that the message had an Australian link, or
• the message was sent by mistake.

Whether the sender should reasonably have known that the message had an Australian link will depend on factors such as whether the recipient had an email address with a ".au" or ".oz" domain or a telephone number with a "+61" country code.

Exemptions

Most organisations sending commercial electronic messages within Australia or from outside Australia to Australian recipients will be subject to the Spam Act. However the Act specifically excludes government bodies, religious organisations, charities and political parties from the consent and functional unsubscribe requirements (but not the requirement for identifying the sender). Certain electronic messages sent by educational institutions may also be exempt in the same way.

Messages sent without a computer owner's knowledge (for example, in the case of computer hijack) are also specifically excluded.

Most importantly, it is permissible to send a message containing factual information and directly related comment, where such an email would not be classifiable as a commercial electronic message. Such factual messages must still contain contact details and information about the author or organisation sending the message, but a functional unsubscribe facility will not be required. Advice should be sought before relying on this exemption, as messages with factual content may still be "commercial" for the purposes of the Act.

Practical tips: What you must do by 11 April 2004

• Establish whether you send commercial electronic messages as defined in the Act.
• Be sure that you have the express or implied consent of the recipients of any commercial electronic messages which you send.
• Be sure that any commercial electronic messages which you send contain your contact details and a functional unsubscribe facility.
• Be sure that your systems are able to record recipients who unsubscribe and make sure that they do not receive further messages from you.
• Not use address harvesting software or address lists compiled using such software.
• Set up a complaints handling procedure.

For further information, please contact Chris McLeod.