Have we canned spam, asks Government review

By Philippa Hore and Lisa Billington.

Key Points:
The Government is now reviewing the Spam Act 2003 and wants to hear from businesses about their experiences with it.

Since 11 April 2004, businesses and other organisations that send electronic messages have been required to comply with the Spam Act 2003 (Cth), which was introduced in response to community concerns about the enormous volume of unsolicited electronic messages in circulation.

The Act prohibits a person or organisation from sending unsolicited commercial electronic messages. Importantly, it does not apply only to bulk unsolicited emails - a single email to a single recipient can still breach the Act.

We looked at the requirements of the legislation in our Insights from March 2004, "The plan to can spam in Australia". At the time, we noted that key issues would be the nature of "consent" and what made a message "commercial".

Review of the Spam Act

The Spam Act contains a provision requiring a review of the legislation to be conducted and tabled in Parliament by April 2006. On 13 December 2005, the Minister for DCITA, Senator Helen Coonan, released an issues paper inviting written comment on the operation of the Act and the relevant parts of the Telecommunications Act 1997 (Cth).

In the media release, Senator Coonan commented that "since the Act came into effect, many professional spammers that had been based in Australia have either shut up shop or left the country". The issues paper documents that the Australian Communications and Media Authority ("ACMA"), the agency responsible for enforcing the Spam Act, has, since the commencement of the penalty provisions, warned more than 350 businesses to adjust their business practices to comply with the Act, fined five businesses and commenced Federal Court proceedings against one alleged spammer. The issues paper also acknowledges that the vast majority of spam on Australian networks originates from overseas.

The issues paper poses a number of questions for possible discussion in submissions, including:

• Are the provisions of the Act operating effectively?
• Does the Act provide suitable coverage and protection?
• Are the enforcement measures suitable?
• Are ACMA's investigatory powers sufficient?
• Should facsimile spam be covered by the Act?
• Are industry codes of practice useful and successful?
• Are further education and awareness activities required?
• Does the Act require any improvements?
• From an industry perspective, what has been the impact of the Act? Has there been any negative impact?

The closing date for submissions is Wednesday 1 February 2006.

Please contact us for any further information about the issues paper, or if you would like any assistance in preparing a submission. Of course, we will keep you informed of developments.

In the meantime, we would like to wish our readers all the very best for a lovely Christmas and a safe, happy and prosperous 2006.

For further information, please contact Philippa Hore.