8 January 2010
Real estate agency breaches the Spam Act
The Australian Communications and Media Authority has issued a formal warning to Danielou Pty Ltd, trading as Elders Real Estate Wollongong, following an investigation that found the real estate agency breached the Spam Act 2003 by sending commercial electronic messages without an unsubscribe facility.
‘This is the first enforcement measure taken against a real estate agent since an ACMA awareness campaign about unsolicited communications targeted at the real estate sector,’ said Chris Cheah, acting Chairman of the ACMA.
The campaign was held in response to the ACMA’s concerns about widespread non-compliance with marketing obligations by members of the real estate sector. The ACMA wrote to more than forty head offices of leading real estate franchisors and companies in 2009, informing them of key obligations and providing links to online training and resources to increase awareness of legal obligations and of the consequences of non-compliance.
‘It is disappointing that some real estate agents do not appear to have taken the opportunity to understand the requirements for complying with the Spam Act,’ Mr Cheah said.
The ACMA has a tiered approach to compliance and enforcement. While education is the first step, stronger enforcement action will be used if compliance is not achieved.
‘Real estate agents should consider themselves to be on notice,’ Mr Cheah added. ‘Members of the industry need to understand that, even when they are dealing with potential buyers on a one-to-one basis, these interactions are commercial and they need to comply with spam and telemarketing laws.’
Commercial electronic messages must be sent with the recipient’s consent and include a statement that the recipient can use an electronic address, provided in the message, to send an unsubscribe request. During the course of this investigation, the ACMA identified messages sent by Elders Real Estate Wollongong that did not contain unsubscribe wording to this effect.
The ACMA has taken a wide range of enforcement action against non-compliant ‘spammers’ in the last twelve months, including recent action in the Federal Court which resulted in significant penalties being imposed on both individuals and companies.
Under the Spam Act, potential penalties of up to $1.1 million per day may be imposed by the Federal Court for repeat offenders
If people are receiving commercial electronic messages for which they have not provided consent, or have been unable to unsubscribe themselves from a mailing list, complaints can be made at www.spam.acma.gov.au or by calling the ACMA on 1300 855 180.
Media contact: Donald Robertson, Media Manager, on (02) 9334 7980.
The Spam Act 2003 regulates unsolicited commercial electronic messages in Australia. Commercial electronic messages can be emails, SMS messages, MMS messages, instant messaging messages or any other similar messages.
The Act sets out that commercial electronic messages must have the following features:
- Consent – it must be sent with the recipient’s consent. They may give express consent, or consent may be inferred from their conduct and ‘existing business or other relationships’;
- Identify – it must contain clear and accurate information about the person or organisation that authorised the sending of the message; and
- Unsubscribe – it must contain a functional ‘unsubscribe’ facility to allow the recipient to opt out from receiving message from that source in the future.
The penalty provisions of the legislation came into force in 2004. At that time Australia was tenth in the ranking of spam-relaying countries for email spam, according to the Sophos list. For the 2008 calendar year, Australia had fallen to 32nd.
The Act provides a range of enforcement options and the ACMA determines an appropriate action on a case-by-case basis. Formal warnings are used by the ACMA to indicate concerns about alleged contraventions and allow for the business or individual to take compliance action to prevent any future contraventions.