ACMA - regulating spam and telemarketing

ACMA - regulating spam and telemarketing Dannielle Evans Senior Lawyer International Training Program Melbourne, 4 September 2006

Ever received an unwanted email like this?
From: spammer@spamworld.com.au
Sent: Tuesday, 29 August 2006 7:50 AM
To: Nick Smith [mailto: NickSmith@smith.com]
Subject: Tired of being overweight? We can help! We also have cheep# Vi(agra !
Being even a little overweight today can be extremely difficult and is embarrassing for so many people. Today's society expects men and women to look lean, toned and hard at all times. Tough standards to live up to! And mostly unrealistic. However, steady weight loss and improved self image are not unrealistic, at all! In fact anyone can do it, quite easily, including you!

or this?
From: spammer2@spamworld.com.au
Sent: Tuesday, 29 August 2006 7:55 AM
To: Jenny Smith [mailto: JennySmith@smith.com]
Subject: Paradise S.E.X. Island Awaits! Tropical 1 week vacations where anything goes!
We have lots of WOMEN, SEX, ALCOHOL, ETC!! Every man's dream awaits on this island of pleasure. Ever wonder what a Fantasy Sex Holiday would be like? If it was available at a reasonable cost.........would you go? Check out more information on our site & we can make your dream vacation a reality.... Take a vacation with us! Visit: takeavaccationspam.com

or perhaps an unwanted text message like this:
Want 2 meet new guys and girls in your town! Text 19 xxxxxx with the words MEET GIRLS or MEET GUYS to chat or swap photos or...visit meetguys&girls.net. 18+

Then you’ve been spammed

Spam is universal and it is annoying!
Issues:
Rising costs to society: productivity losses, IT costs and fraud victims
Undermining consumer confidence in e-commerce
In Australia spam encompasses unsolicited commercial electronic messaging: email, SMS, MMS
Most email is spam (70%) but new forms emerging:
Missed call marketing
Domain name hijacking or spoofing
Phishing or identity theft

Australian legislation: Spam Act 2003
Came into force 10 April 2004
Prohibits sending commercial electronic messages (CEMs) (which have an Australian link).
A CEM is an electronic message that having regard to:
the content of the message;
the way the message is presented; and
content that can be located using links, telephone numbers or contact information using the links or numbers in the message
it can be concluded that one or more of the purposes of the message is commercial.

Commercial purposes
Commercial purposes proscribed by Spam Act 2003 include an offer to supply, advertise or promote:
goods or services; or
land or an interest in land; or
a supplier, or prospective supplier of goods, services, land or an interest in land; or
a business opportunity or investment opportunity; or
a provider, or prospective provider, of a business opportunity or investment opportunity.

Consent
Prohibition on sending CEMs does not apply if recipient consented.
Recipient may give express consent or can be reasonably inferred from their:
conduct;
business;
other relationships.
Silence not amount to consent.
Consent cannot be inferred merely from publication of an electronic address.

Exemptions
‘Designated commercial electronic messages’
Certain messages from Government bodies, registered political parties, charities, religious organisations and educational institutions (restricted).
Purely factual messages.
Possible for a designated CEM to still breach the Spam Act if no accurate user information .

Related prohibitions
CEMs must include accurate information about the individual or organisation who authorised the sending of the message.
CEM’s must contain a functional unsubscribe facility that allows recipient to opt-out from receiving CEMs from that source in the future.
Prohibition on supplying, acquiring or using address harvesting software.

Enforcement and compliance
ACMA can issue:
Formal warnings;
Infringement notices (fines); and
Enforceable undertakings.
ACMA can commence proceedings in Federal Court for:
Injunction – restraining conduct, requiring performance or interim injunction;
Civil penalties up to $1.1 million per day for repeat corporate offenders); and
Potential to recover financial benefit.

Investigating complaints about spam
Complaints about spam can be made to ACMA in writing under Telecommunications Act 1997 .
ACMA may investigate complaint using its information gathering powers: notices to produce information/documents and search warrants.
ACMA can refer complaints to Ombudsman or ACCC.
Spammatters reporting tool - see ACMA webpage: www.spam.acma.gov.au

Five-layer strategy for reducing spam
Strong legislation
Technological measures
Industry partnerships (involving both the e-marketing and ISP industries)
Consumer and business end-user education
International cooperation
ACMA is taking action on all fronts.

Telemarketing Legislation - Do Not Call Register Act 2006
In addition to spam ACMA will soon be regulating nuisance telemarketing calls.
Introduction of the Do Not Call Register in 2007.
Legislation is similar to the Spam Act 2003.
Prohibition on telemarketers making unsolicited telemarketing calls to a number registered on the Do Not Call Register.
General overview of the Do Not Call Scheme.

ACMA - regulating spam and telemarketing

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