Australian Spam Legislation

The Spam Act will prohibit unsolicited commercial electronic messages with an Australian link from 10 April 2004. It will also require all commercial electronic messages to contain accurate sender information and a functional unsubscribe facility.

Summary

In order to comply with the legislation, a commercial electronic message must satisfy three basic rules:

1. Must not be sent without the recipient’s prior consent (express or implied).
2. Must include accurate sender information.
3. Must have a functional facility to allow the receiver to "opt-out" or to unsubscribe from future messaging.

Electronic messages include:

• E-mail messages.
• Short Message Service (SMS).
• Multimedia Messaging Service (MMS).
• Instant messaging (IM).

It does not include voice calls from a standard phone service or facsimile messaging.

Exemptions

Certain types of unsolicited commercial electronic messages are exempted from the ambit of the legislation. These messages include:

• Purely factual information without any commercial message.
• Messages relating to the supply of goods or services from the following organisations:
  1. Government bodies.
  2. Registered political parties.
  3. Charities.
  4. Religious organisations.
  5. Educational institutions (messages directed to past and present students or members of their households).

Enforcement measures

The legislation will be administered by the Australian Communications Authority (ACA). The ACA has begun setting up a dedicated unit to enforce the new anti-spam law and will be working with the relevant industries to develop appropriate codes for registration, and to investigate spamming and ensure code compliance.

• The ACA has powers to:
  • Enforce undertakings by originators of commercial messages.
  • Issue formal warnings and court injunctions.
  • Issue infringement notices and fines in lieu of court proceedings.
  • Seek court imposed penalties.
• The Act also allows application to the Court for compensation for a victim who has suffered loss or damages as a result of spamming.
• The Court may also order the spammer to surrender any financial benefit that they have obtained from spamming.

Note: The Spam Act applies to spam originating in Australia only - so will have no effect on the large volume of junk mail that we receive from overseas.