cases, codes and responses

This page considers litigation in Australia and New Zealand regarding spam, industry codes, community education campaigns and international agreements.

It covers -

• cases
• industry initiatives
• industry codes
• community education
• international action

     cases

The Australian Spam Act 2003 is not yet in place. We will be reporting in future on litigation under that legislation and, more broadly, on industry responses.

It should be noted that some spam-related offences are already subject to federal law. These include

• breaches of the Trade Practices Act 1974 and Therapeutic Goods Act 1989 through false or misleading claims (with untested suggestions that the Trade Practices Act also encompassed an offence regarding falsified headers or addresses and false opt-out facilities)
• prohibition under the Interactive Gambling Act 2001 of some forms of online gambling and their promotion
• offences under the Crimes Act 1914 regarding use of email (or other media) in a way that is menacing or harassing (with suggestions that the offences could extend to offensive sexually-related content)

The Cybercrime Act 2001 (replacing s76E provisions in the Crimes Act and the Criminal Code Act 1995) includes offences regarding interference with, interruption or obstruction of the lawful use of a computer by means of a telephone line or ISP. Those provisions were successfully used in prosecution during 2000 of a spammer who trespassed on and damaged a third party computer system in relaying commercial messages.

There are no specific provisions in the Corporations Act 2001

     industry initiatives

Hitherto the main action in Australia regarding spam might be regarded as having come from the Internet Industry Association (IIA) and the Coalition Against Unsolicited Bulk Email, Australia (CAUBE.AU).

The the IIA NoSpam program, for example, focussed ISP and other business support for development of an effective regime that addresses consumer concerns, is both legally and technologically sound, and does not involve onerous obligations for small to medium-sized ISPs. ISPs are a 'choke point' in regulating spam. However, international law and end-user action (eg using personal/corporate filters and not responding to spam) are important. 'False positives' and other problems mean that filtering by ISPs is not the whole solution or one without cost.

It is envisaged that industry bodies such as the IIA will work with NOIE and the ACA in promoting development and use of technological measures designed to reduce or eliminate spam.

Those measures will presumably centre on action to close open relays (used as an unintentional conduit for spam) and the utilisation of spam filters and "spam interception" services.

     industry codes

The legislation is to be given effect through regulations and through industry codes.

In June 2003 the Australian Communications Authority and Australian Communications Industry Forum (ACIF) announced that the telecommunications industry was covered by a formal industry code covering bulk unsolicited Short Message Service (SMS) marketing, aka speam.

The code (PDF), to "promote the responsible use of SMS for legitimate marketing purposes", is to be underpinned by financial penalties if operators fail to comply with an ACA direction to abide by its provisions.

Features of the code are -

• a requirement that operators not send marketing messages to customers unless they have specifically requested them, or otherwise given prior consent
• operators must include a "Recognised Identifier" in messages to enable recipients to identify the sender
• recipients must be offered a low-cost, convenient method for opting out of receiving further marketing messages (such as a freecall number)
• operators will be required to give effect to customers' opt-out notices as soon as practicable (generally within 48 hours of receiving it).

An additional code of practice is being developed by the Australian Direct Marketing Association (ADMA), "covering marketing by all mobile wireless technologies", including SMS, multimedia message services (MMS), Wireless Application Protocol (WAP) and 3G technologies.

     community education

CAUBE.AU notes that

While education cannot address the problem of unrepentant spammers who would happily destroy the Internet if it would earn them a few bucks in change, there are those who spam simply because they are not aware of the destructive nature of that method of advertising. We believe that many of these people, when given a reasonable and balanced representation of the facts, will agree that spam is an inexcusably unethical method of promoting their products.

The federal government has announced that the National Office for the Information Economy (NOIE) will coordinate a

broad-based educational program focusing on both business and user communities in partnership with such groups as NetAlert, the IIA, the AIIA and others.

That program will target "user communities", with an emphasis on spam-reduction and avoidance strategies. The effectiveness of the program is uncertain, particularly given past poor perfornce by NetAlert (somewhat cruelly described as a body in search of a mission, distinguished so far by expensive events and publication of mouse-mats) and uncertain commitment by the 500-member Australian Direct Marketing Association (ADMA) and marketers outside that organisation.

The program will also target business communities, focussing on legitimate online marketing and reflecting past strategy documents such as the 2000 Treasury Department guide Building Consumer Sovereignty in Electronic Commerce: A best practice model for business.

As noted on the first page of this profile, NOIE will work with government, business and other groups to develop "best practice guidelines in electronic messaging'.

The education campaigns are likely to feature past advice regarding responses to offensive/illegal content. NOIE notes that

if you receive spam that advertises or promotes content that you believe is offensive or may be illegal, you can complain to the Australian Broadcasting Authority about that content.

Pyramid schemes involving participants in Australia can be reported to the Australian Competition & Consumer Commission.

Stock spams sent by Australians, or about Australian companies can be reported to the Australian Securities & Investments Commission (ASIC).

... if the spam contains a clear indication that a crime has been committed, or you have fallen victim to an email scam, then you should report it to the police.

     international action

The legislation includes provisions anticipating Australia's entry into multilateral arrangements with other countries regarding regulation of spam, with those agreements to be given effect through regulations under the Spam Act.

The Government has showcased the Memorandum of Understanding with South Korea highlighted earlier in this profile, claiming that "other countries have indicated a desire to do so once the legislation is finalised".

We've noted concerns regarding the weakness of the Australian legislation in relation to to the EU Directives, an echo of problems with EU acceptance of Australia's privacy regime.







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