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ACMA - regulating spam and telemarketing
 

ACMA - regulating spam and telemarketing

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  • Spam Act 2003 The Spam Act 2003 (the Spam Act) became law on 12 December 2003 but was not enforceable until 10 April 2004. The delayed start date enabled ACMA to commence a legislation awareness-raising campaign – targeting business and consumer end-users. This provided business with sufficient time to modify their procedures and practices to ensure compliance with the Spam Act before compliance would be enforced. The Spam Act prohibits the sending of unsolicited commercial electronic messages (as commercial messages are the largest volume component of the spam problem) that have an Australian link. An Australian link is established if the message originates in Australia and is sent to Australia or overseas, or if a message originates overseas and is sent to Australia. The Spam Act requires that all commercial electronic messages must be sent with the recipient’s consent and must include accurate information about the sender and a functional unsubscribe facility. The Spam Act also prohibits the use of address-harvesting software and address-harvested lists to send spam. The consent requirements provide that the senders of commercial electronic messages must have either express or inferred consent. Express consent covers situations where a person has specifically requested or agreed to the sending of messages from the sender. Inferred consent includes consent that may reasonably be inferred from the conduct and the business and other relationships of the individual or business concerned.
  • Spam Act 2003 Designated commercial electronic messages are exempt from the consent and functional unsubscribe facility requirements but are still subject to the requirement to include accurate sender information where they are commercial in nature. The four categories of ‘electronic messages’ which are designated commercial electronic messages are: messages which contain primarily factual information; messages sent by government bodies, political parties, religious organisations or charities; certain messages sent by educational institutions (only messages to enrolled students, former enrolled students or messages relating to goods or services or where the institution is the supplier or prospective supplier of the goods or services); and messages specified in the regulations (none as yet specified).
  • Enforcement and Compliance ACMA’s first priority targets are major spammers who clearly do not intend to comply with the Spam Act, or repeatedly fail to comply after complaints are made. This dictates use of the legislation and its penalty provisions or the threat to do so. However the legislation and its provisions are but one of a range of available tools and the mix of tools used and the emphasis on each will vary according to the situation and over time. It is expected that the emphasis will shift to industry action and user education as the focus changes from accessible spammers to, for example, legitimate businesses which intend complying and take practical and satisfactory steps to do so. They are addressed, in the first instance, by the ACMA’s compliance and education campaign. The Spam Act provides a sliding-scale of enforcement measures to be used by ACMA depending on the seriousness of the breach. They include issue of formal warning, acceptance of an enforceable undertaking from the spammer, and the issuing of an infringement notice (fine). ACMA can also apply to the Federal Court for an injunction or may institute proceedings for breach of a civil penalty provision. As well as ordering a person to pay a substantial monetary penalty (up to AU$220,000 per day for first-time corporate offenders and AU$1.1 million per day for repeat corporate offenders), the Court may make an order that offenders can be required to forfeit profits and pay compensation to spam victims who have suffered loss or damage as a result of the contravention.
  • Enforcement and Compliance Action End-users who receive spam from any source can report it to ACMA. Most spam reports are sent to the ACMA website but reports can also be lodged using an automatic reporting and analysis tool launched to the public in October 2005 (SpamMATTERS). The detailed information compiled by this system can be used later as forensic evidence and to support ACMA investigations. Spam complaints to ACMA are channelled through the same online customer relationship management system used to process compliance related enquiries from businesses. In the last financial year the spam section of the ACMA website averaged 40,000 hits per month and more than 1500 enquiries were answered by email, letter or telephone. When ACMA receives complaints about spam sent by a business or individual it sends a letter advising them about the Spam Act, requesting information about their compliance policies and advising them that future non-compliance could attract significant penalties. These letters also direct businesses to remove the complainant’s details from their mailing databases, where the complainant had given ACMA permission to disclose this information. In 2004-2005, ACMA formerly wrote approximately 200 letters to companies/individuals, most of whom responded by satisfactorily demonstrating their intention to comply with the Spam Act. Since the Spam Act took effect in April 2004, ACMA has taken the following enforcement action: required 350 businesses to adjust their practices, including alleged global spammers operating in Australia before 2004; issued fines to five Australian businesses; accepted enforceable undertakings from three businesses; issued formal warnings to eight individuals/companies to comply with Spam Act; executed five search warrants (under Part 28 of the Telecommunications Act 1997 ); issued four formal demands for information (under section 522 of the Telecommunications Act 1997 ); and commenced proceedings in the Federal Court against one alleged global spammer.
  • Anti-spam regulation: First year review In April 2005 the enforcement of the Australian anti spam regime celebrated its first anniversary. The year has been a full one for ACMA, which was charged with its implementation and development of skills, tools and practices to best deliver results that were the goal of the Parliament’s passing of the legislation. From the outset the legislation was seen as a part of the regime and not its totality – the necessary other parts such as end-user education, technology solutions and international cooperation were to be developed and implemented. In this ACMA was expected to draw on its previous experiences managing the telecommunications industry, of which the ISP industry is seen to be a part. The regime had some early successes but ACMA is under no illusions about the necessity for ongoing, long-term action based around a multifaceted anti-spam strategy, of which the law is a part. The encouraging efforts made by technology developers, local industry, international peers and colleagues and especially consumers need to be developed and strengthened further to achieve continued successes in the fight against spam.

ACMA - regulating spam and telemarketing ACMA - regulating spam and telemarketing Presentation Transcript

  • 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.