New anti-spam Act about to commence

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New anti-spam Act about to commence

New federal legislation that prohibits the sending of unsolicited commercial electronic messages will commence on 10 April 2004.

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New federal legislation that prohibits the sending of unsolicited commercial electronic messages will commence on 10 April 2004.

The Spam Act 2003 will have some implications for human resources management, for example for employment agencies, vendors of HR products and services and conference organisers.

HR practitioners should also be aware of their rights in terms of receiving, and declining to receive, such electronic messages.

What is 'spam'?

The Act defines spam as 'unsolicited commercial electronic messaging'. This covers emails, mobile text messages and other forms of electronic messaging.

It may include a single message or bulk messages. Voice-to-voice telemarketing is not covered. The message must be sent without the recipient’s consent. Consent may be expressly given, or may be inferred from the behaviour or business or other relationships of the recipient.

In certain circumstances, consent may be inferred if the recipient conspicuously publishes its electronic address.

The prohibition also covers:

  • messages with an Australian link – either spam originating in Australia and sent to any destination or spam originating from overseas and sent to an address accessed in Australia;
  • messages sent to a non-existent address that would have an Australian link if the address existed;
  • the supply, acquisition or use of software that 'harvests' electronic addresses from the internet for the purpose of sending spam; and
  • the provision, acquisition or use of address lists to send spam.
What messages must contain

The Act will require that all commercial electronic messages contain the following:

  • accurate information about the message’s originator, that is the person or organisation that authorised sending the message, regardless of whether they actually sent the message or authorised someone else to do so. This information must be reasonably likely to remain correct for at least 30 days after sending the message; and
     
  • a functional 'unsubscribe' facility that allows the recipient to opt out of receiving messages from the same source in future. This facility must be reasonably likely to be usable for the same 30-day minimum period, and any request to opt out must be honoured within five working days of its receipt date. Regulations under the Act will provide further details of facilities that can be used.
What is excluded from the Act?

Exclusions from the Act’s coverage apply to messages from government bodies, registered political parties, charities, religious organisations and educational institutions (in the latter case where messages relate to attendance or former students).

In each of these cases, the message must relate to goods and services, and the supplier of the goods and services must authorise the message.

Purely factual messages are also excluded from the Act, provided the sender includes accurate information about the message’s originator.

Who will administer the Act?

The Australian Communications Authority (ACA) will administer the Act, and intends to develop Industry Codes to support it.

Sanctions for non-compliance

The Act will be backed by the following sanctions:

  • The ACA may issue a formal warning in cases where it is satisfied that a breach is largely inadvertent and unlikely to recur.
  • The ACA may issue an infringement notice, backed by a financial penalty.
  • The ACA may initiate court action in respect of more serious breaches, or if a person or organisation fails to comply with an infringement notice. If the court finds that a breach occurred, the ACA may apply to the court to have the offender pay a financial penalty and also to surrender any financial benefit gained from the breach. Any person who suffers loss or damage from a breach of the Act can apply for an order for compensation.

The main penalties under the Act are:

  • sending unsolicited messages;
  • sending messages to a non-existent address;
  • failing to include accurate sender information;
  • failing to include a functional 'unsubscribe' facility;
  • using 'harvested' lists or address-harvesting software; and
  • aiding, abetting or being a party to any of the above.

Further information about the provisions of the Spam Act is available from the National Office for the Information Economy.

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