Repercussions of SPAM

Everyone who has a computer will be well aware of Spam or electronic junk mail.

How often have you opened your email to find Spam messages roaring into your inbox heralding the opportunity of purchasing copious amounts of Viagra or offering you the opportunity of a lifetime to invest in overseas property? This is the irritant of business today. Computers are a personal appendage. What is on the screen has the total focus of the operator. Spam is in fact an unsolicited invasion of personal space and there are severe penalties attached to sending certain unsolicited emails.

At the NISER (National Institute of Socio-Economic & Environmental Research) offices in Cooroy we are lucky enough to have the services of Jamie White an Intellectual Property and Internet Lawyer and a Registered Trade Marks Attorney with Ffrench Commercial Lawyers, who specialises in this area. Jamie has provided us with the following advice so that I can give you all the run down on Spam and the consequences.

Australia enacted the Spam Act 2003 in 2004 to combat the growing volume of unsolicited messages. You are prohibited under the Spam Act to send an electronic message to a recipient containing an invitation to do business without the consent of the message recipient.

Consent can be obtained either expressly or by inference. Express consent is obtained via conduct such as newsletter subscription, ticking a box, completing a form or over the telephone. Inferred consent may be established through an existing relationship (business or other) or through conspicuous publication of a work-related Email address (business or other).

The Spam Act covers messages sent via Email, Short Message Service (SMS), multimedia message service (MMS) and instant messaging services (such as Microsoft Instant Messenger). The Spam Act does not cover voice telemarketing, internet pop-ups or messages sent via facsimile.

Government bodies, non-government organisations, registered political parties, charities, religious organisations and educational institutions are partially exempt.

Despite the exemption, partially exempted bodies must meet the identity requirement set out below.

If your business practices include the sending of electronic messages, you must ensure that:

1. You can establish that you have obtained consent to send a commercial electronic message to a recipient;

2. A commercial electronic message sent by you to a recipient accurately identifies yourself or your organisation as the authorised sender of the message;

3. A commercial electronic message sent by you to a recipient contains an ‘unsubscribe’ facility.

The main penalties imposed are civil fines and injunctions. However, formal warnings, infringement notices and undertakings are also common.

For further information please contact us at NISER on 5442 5050 or niser@niser.org.au

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