Spam Act:

The increasing use of internet based and online telecommunication technology has also seen the increasing abuse of these systems by unscrupulous businesses which send bulk and unwelcome emails as a form of direct marketing (this is sometimes known as “unsolicited bulk email” or UBE for short). This often results in an oppressive growth of junk email and consequent inefficiency, confusion and frustration on part of individual email account holders. This kind of direct mass emailing is often referred to as spam. The Australian Communications and Media Authority states that:

While most people see it as the electronic version of junk mail, there is no universal definition of spam with definitions differing from country to country. In Australia, spam is identified as unsolicited commercial electronic messages. A spam message is not necessarily sent out in bulk to numerous addresses. Under Australian law, a single electronic message can also be considered spam. ^[1]

According to Spamhouse, spam emailing involves a two test definition. This definition requires that “the recipient's personal identity and context are irrelevant because the message is equally applicable to many other potential recipients” and at the same time “the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent.” ^[2] As a result, spam can be roughly defined as unwelcome and unsolicited electronic communication. Although it is lack of consent on part of the recipient of the spam which is relevant, not the content of the communication, spam can take the form of either a pop-up website, email, text message and the like, and can have either of the following characteristics:

• Advertisement;
• Pornography;
• Scam;
• Begging letter; and
• Gratuitous offer of some sort.

In Australia, spam is governed by the provisions of the Spam Act 2003 (Cth) which makes is an offence to send unsolicited commercial electronic messages to third parties where those messages have a link in Australia. The operative components of the Act are:

• Part 2: rules about sending commercial electronic messages;
• Part 3: rules about address-harvesting software and harvested-address lists;
• Part 4: civil penalties;
• Part 5: injunctions;
• Part 6: enforceable undertakings; and
• Part 7: miscellaneous provisions.

The link requirement is satisfied where the message was sent to a destination within Australia from overseas, or where the message originated from Australia. The Act covers electronic communication including emails, phone text messaging, multimedia messaging and instant messaging. The Act does not cover facsimile or voice telemarketing. The Spam (Consequential Amendments) Act 2003 (Cth) made various amendments to the Telecommunications Act 1997 (Cth) and the Australian Communications Authority Act 1997 (Cth) which facilitates the investigation and enforcement of the Spam Act regime.

Sometimes, spam can be facilitated by an embedded spyware programme that is accidentally downloaded onto a user’s computer. For more information about spyware and related issues, please see our section on “Hacking, Phishing and Phreaking”

If you are considering legal proceedings in relation to spam, there will be a variety of important legal considerations that could need to be thought about before you finally decide what necessary steps will next have to be taken to progress your case. Our spam lawyers have been assisting clients with a broad range of legal and litigation matters for over a decade and we have the experience and expertise required to provide the guidance you may need.

If you would like to discuss legal matters relating to spam further, you can contact our firm by telephone on (02) 9233 4048 or send an email info@navado.com.au to arrange a meeting with our spam solicitors.

[1] Australian Communications and Media Authority, “Spam: Background Information” <http://www.acma.gov.au> (undated; accessed 21 December 2012)
[2] Spamhouse, “The Definition of Spam” <http://www.spamhaus.org> (undated; accessed 21 December 2012)

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