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     framework

This page considers the framework for regulation of spam in Australia.

It covers -

• the legislation
• background
• definition

     the legislation

The 2003 Spam Act (Cth) (PDF) and Spam (Consequential Amendments) Act 2003 (Cth) (here) came into effect on 10 April 2004. They are to be reviewed within two years.

The legislation reflects the national government's telecommunication powers under the 1901 federal Constitution, discussed here.

The Spam Act 2003 - formally described here - prohibits the sending of unsolicited commercial messaging within Australia or on behalf of Australian entities.

The associated Spam (Consequential Amendments) Act 2003 - formally described here - makes various amendments to the Telecommunications Act and the ACA Act to enable effective investigation and enforcement of breaches of the Spam Act.

Its main provisions are discussed below. In essence, they involve a framework to enable development of industry codes, an investigatory role for the ACA regarding complaints and authorisation of warrants to monitor compliance with the Act and regulations.

The legislation is weaker than the EU 1997 Distance Selling Directive (which builds on the 1995 Data Protection Directive discussed in our Privacy guide), the 2000 Electronic Commerce Directive and 2002 Directive on Privacy & Electronic Communications.

The importance of global regulation in dealing with spam means that Australia will come under pressure to harmonise its legislation with that in the EU and to move beyond broad statements about bilateral cooperation, such as the July 2004 Memorandum of Understanding (MOU) between the Australian Competition & Consumer Commission (ACCC), the Australian Communications Authority (ACA), the US Federal Trade Commission, the UK Department of Trade & Industry, the UK Information Commissioner and UK Office of Fair Trading.

The 2003 enactments should be seen as a major step on a long road, rather than arrival at a final destination.

     background

Development and passage of the legislation reflected sustained lobbying by the Internet Industry Association (IIA), consumer groups such as Coalition Against Unsolicited Bulk Email Australia (CAUBE.AU) and other entities that sought effective regulation of junk messaging.

It also reflected community consultation by the National Office for the Information Economy (NOIE), centred on the 2002 interim and 2003 final versions of the NOIE Spam Report, and discussions in regional/global telecommunications regulation fora.

The consultation encompassed public submissions by bodies such as the federal Privacy Commissioner and Australian Information Industry Association. It was followed by a Senate Committee report on the draft legislation.

That legislation received, at best, lukewarm support from direct marketers, from a number of charitable, religious and education bodies and from libertarians opposed to a restriction on free speech. That was accommodated through a range of exclusions, most of which will ideally be tightened in future through amendment of the Act or through the articulation of effective regulations under the Act and industry codes of practice.

Most provisions of the Act commenced on 10 April 2004, 120 days after the legislation received Royal Assent. The expectation is that will ensure that persons or enterprises that currently unknowingly send spam will be able to correct their behaviour without penalty during the 'sunrise' implementation period.

     definition

The Act defines spam as "unsolicited commercial electronic messaging", embracing email, mobile text messaging (SMS) and some other electronic messaging.

The definition excludes voice to voice telemarketing. The 8 April 2004 Spam Regulations 2004 (here) - regulations to the Spam Act 2003 exclude facsimile messages from the definition of commercial electronic message (and therefore from being covered by the Spam Act). In the US the Telephone Consumer Protection Act 1991 (TCPA) has crimped fax spam, with prosecution by the Federal Communication Commission resulting in a US$5.4 million fine against Fax.com.

The TCPA prohibits facsimiles that advertise the "commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission". Exemptions for transmissions to entities with which the sender has a "prior relationship" are being tightened.

The Australian legislation is concerned with commercial messaging, ie messages that offer a commercial transaction or point the recipient to a location where a commercial transaction takes place. To be considered spam, the message must have been sent without the recipient's consent.

Such consent may be expressly given or may be inferred from the behaviour or business or other relationships of the recipient. In some circumstances - one of the most criticised aspects of the legislation - consent may also be inferred by "conspicuous publication" of an electronic address.

In the Second Reading Speech the Minister for Communications, Information Technology & the Arts commented

The Spam Bill 2003 has as its cornerstone the principle of consent. Has the recipient asked for this communication—which constitutes explicit consent—or is there implicit consent? Implicit consent would exist where there is an existing business or other relationship. Drafting the bill has been a delicate balancing act. We must balance the legitimate needs of business and the concerns of the community. ...

The bill hits the right targets. We are hitting those who send spam and the techniques they use, while avoiding a restriction on the right to free speech—be it political, religious or general free speech. The bill also avoids any undue burden on industry or significant restriction on generally accepted business practices. It provides a springboard to develop and use the international arrangements that will be essential to deal with spam effectively because of its global nature.

The Act does not refer to bulk messaging. In principle a single unsolicited commercial electronic message could thus be spam, although enforcement by government is unlikely.





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