ACCI Spam – Heading Please The scene is common throughout offices the world over. You’re away for a week on business, you get back to the office, turn on your computer open up your email inbox only to find 2,577 emails trying to sell you everything from cheap pharmaceuticals to assist in the, ahem, “twilight” years to PhDs in astrophysics.

Some of the emails contain viruses, some are scams, all are unwanted. Spam has become a nuisance for just about anyone with an email address (in other words, everyone). Once research institute estimated that as of February 2004, spam constituted 62 per cent of all emails sent worldwide, with spam percentages this high, unsolicited email is costing business time, productivity and ultimately, money. And the problem is getting worse. To quell this problem the Commonwealth Government has introduced the Spam Act 2003. The law was passed on 12 December 2003 with penalty provisions coming into force from 10 April 2004.

The Act applies to all Australian entities and prohibits spam originating in Australia being sent to any address and spam originating overseas being sent to an Australian accessed account. Business will now have to practice caution when sending commercial material electronically to customers, or potential customers. Messages sent as emails, short message service (SMS), multimedia message service (MMS) and instant messaging (IM) are included in the legislation as potential sites of spam.

Businesses must follow three simple rules when sending electronic messages to ensure they do not contravene the law:-

1. The business sending the material must have the addressee’s consent. This consent can either be express or inferred;

2. The sender must clearly identify itself in the message;

3. There must be an unsubscribe function available and businesses must deal with opt out applications immediately.

Express consent is a direct indication that a person wants you to send them electronic messages. Inferred consent is trickier and is where there is no direct instruction to send messages but it is clear that there is a reasonable expectation that messages will be sent. This applies where there is a previous relationship between sender and addressee or where the conduct of the addressee would indicate that they would like to receive electronic messages.

Page 2 of 2 - ACCI Examples of such conduct that indicates inferred consent includes online registration of products, business relations that are managed electronically (online banking for example), conspicuous, (ie: prominent), display of email addresses and email addresses on business cards. All electronic messages sent must be relevant to the addressee’s role or business. If a builder’s email address is extracted from the Yellow Pages, then only electronic messages that are advertising supplies or enquiring about work can be sent, not advertisements for cheap pharmaceuticals.

The penalties that are applied to companies that breech the legislation for the first time vary considerably from formal warnings to court procedures accompanied by fines of up to $220,000. A second contravention of the same provision may see a company facing fines of up to $1.1 million.

 More information can be found at the national Office for Information Economy website: www.noie.gov.au

This information was developed with assistance from the National Office for the Information Economy. End.