Australian and regional regulatory responses to the key challenges of consumer protection in electronic commerce (March 2008)

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3.4. Spam

• 3.4.1. Sending of commercial electronic messages
• 3.4.2. Harvesting

The primary piece of legislation on spam in Australia is the Spam Act 2003 (Cth).[36] The Act contains provisions regulating ‘commercial electronic messages’, address-harvesting software, and harvested address lists, as well as civil penalties for violations of these provisions. These provisions are concerned with spam within Australia, and are complemented by a number of international cooperation agreements. The Act is also supported by industry guidelines such as the Australian eMarketing Code of Practice[37] and the Internet Industry Spam Code of Practice.[38]

In June 2006 the Report on the Spam Act 2003 Review[39] was tabled in Parliament. This report was based on public submissions made between December 2005 and February 2006. The discussion is quite extensive – most, if not all, of the content of the Act receives some attention – but it was generally argued that few changes to the Act were required.

3.4.1. Sending of commercial electronic messages

Subsection 16(1) of the Act prohibits (with exceptions) the sending of commercial electronic messages.

Electronic messages are defined in section 5 of the Act as messages sent using an Internet carriage service, or any other listed carriage service, to an electronic address in connection with an email account, an instant messaging account, a telephone account, or ‘a similar account’. ‘Message’ is given a broad definition in section 4, including information encoded as text, sound, images, data, ‘any other form’, or a combination of forms. If the purpose, or one of the purposes, of an electronic message falls within the list of purposes in section 6, the message will be considered to be an electronic commercial message. Some examples of these purposes are:

• To offer to supply goods, services or land;
• To advertise or promote a supplier of goods, services or land;
• To offer to provide, or to advertise or promote, a business or investment opportunity;
• To assist or enable a person, through deception, to dishonestly obtain property or financial gain from another person; and
• To assist or enable a person to dishonestly obtain a gain from another person.

It is immaterial whether the goods, services, land or opportunity exist, or whether obtaining the goods, services, land or opportunity would be lawful.

Specific types of communication may be excluded from this definition by the regulations under subsection 6(7) (for example, the Spam Regulations 2004 (Cth)[40] currently exclude fax messages). Messages sent using a standard telephone service are excluded from this definition by subsection 5(5); the Spam Bill 2003 Explanatory Memorandum[41] indicates that this exclusion extends to calls made using Voice Over Internet Protocol (VOIP). The exclusion applies equally to calls made using recorded or synthesised voices. The exclusion of voice calls from this section is complemented by the Do Not Call Register Act 2006 (Cth)[42] prohibiting the making of telemarketing calls to numbers registered on the Do Not Call Register.

Subsection 17(1) requires that commercial electronic messages include clear and accurate identification of the individual or organisation that authorised the sending, and accurate contact information for the individual or organisation.

Under subsection 18(1), a person must not send a commercial electronic message unless it provides a clear and conspicuous ‘unsubscribe’ statement informing the recipient that they may inform the sender that they do not wish to receive further commercial electronic messages. The sender must provide a functional mechanism to allow unsubscribing (subsection 18(1)(c)(i) requires an email address to be specified in the message for this purpose, but other mechanisms may be possible).

3.4.2. Harvesting

The Spam Act also contains restrictions on the use of electronic address-harvesting software and the results of such software. Address-harvesting software is defined as software designed or marketed for searching for and compiling electronic address from the Internet.[43]

Under subsection 20(1), a person must supply or offer to supply address-harvesting software, a right to use address-harvesting software, a harvested address list, or a right to use a harvested address list. This provision does not apply if the supplier had no reason to suspect that the customer or another person would use the software or list for sending commercial electronic messages in contravention of section 16 (see above), or if the supplier did not know and could not have ascertained with reasonable diligence that the supply or offer of supply was made to an individual physically present in Australia, or a body corporate or partnership carrying on business or activities in Australia, at the time of the supply or offer.

Subsection 21(1) prohibits the acquisition and use of address-harvesting software or harvested address lists. This prohibition does not apply if the person did not intend to use the software or list in contravention of section 16.

Subsection 22(1) prohibits the use of address-harvesting software or harvested address lists, unless the use is not in connection with sending commercial electronic messages in contravention of section 16.

These provisions apply if one or more of the supplier, acquirer, or user is an individual physically present in Australia, or a body corporate or partnership carrying on business or activities within Australia at the time of the supply or offer.

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³⁶ Spam Act 2003 (Cth), <http://www.comlaw.gov.au/>.

[37] Australian Communications and Media Authority, Australian eMarketing Code of Practice, ACMA, March 2005, <http://www.acma.gov.au/acmainterwr/telcomm/industry_codes/codes/australian emarketing code of practice.pdf>.

[38] Internet Industry Association, Internet Industry Spam Code of Practice, December 2005, <http://www.iia.net.au/files/IIA/Codes of Practice/Spam/iia spam code.pdf>.

[39] The Department of Communication, Information Technology and the Arts, Report on the Spam Act 2003 Review, DCITA, June 2006, <http://www.dcita.gov.au/__data/assets/pdf_file/40220/Report_on_the_Spam_Act_2003_Review-June_2006.pdf>.

[40] Spam Regulations 2004 (Cth), <http://www.comlaw.gov.au/comlaw/Legislation/LegislativeInstrument1.nsf/0/14F2F85815E224BECA256F71004E2AF8/$file/2004B00070.pdf>.

[41] Spam Bill 2003 Explanatory Memorandum, <http://www.comlaw.gov.au/comlaw/Legislation/Bills1.nsf/0/0E084D5486E890FACA256F720030E3E1/$file/03150em.rtf>.

[42] Do Not Call Register Act 2006 (Cth), <http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/0/1873DAF7175E5709CA2571A2001FC6DE/$file/088-2006.pdf>.

[43] Section 4, Spam Act 2003 (Cth).

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