Financial penalties for breaches of the legislation have recently increased
Under most Commonwealth laws, financial penalties are expressed in terms of ‘penalty units’ instead of dollar figures. As an example, a maximum fine would generally be expressed as ’10 penalty units’ as opposed to ‘$1000’. The Australian Government recently increased the value of penalty units that apply to breaches of most Australian Government laws.
On 28 December 2012, the value of a penalty unit for calculating financial penalties increased from $110 to $170. The penalty unit value had not been adjusted since 1997. The civil penalties that apply for contraventions of the Spam Act 2003 are calculated using penalty units. This means that all financial penalties calculated using penalty units under the Spam Act 2003 will be higher for breaches of the legislation that occur on or after 28 December 2012.
The ACMA is currently in the process of updating its website and other information and fact sheets about the Spam Act 2003 to reflect the new higher penalty unit value.
Australia’s anti-spam legislation – the Spam Act 2003 - covers email, instant messaging, SMS (text messages) and MMS (image-based mobile phone messaging) messages of a commercial nature. It does not cover faxes, internet pop-ups or voice telemarketing. Telemarketing calls and marketing faxes are covered by the Do Not Call Register.
Under the Spam Act, it is illegal for unsolicited commercial electronic messages that have an Australian link to be sent, or cause to be sent. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but has been sent to an address accessed in Australia. The legislation sets out penalties of up to $1.1 million a day for repeat corporate offenders.
The main Acts associated with anti-spam legislation are available at:
- Spam Regulations 2004
- Telecommunications Act 1997 (incorporating the Spam (Consequential Amendments) Act 2003)
Some organisations are exempt or partially exempt from the Spam Act. Messages sent by these organisations must relate to goods or services and the sender must be the supplier of those goods or services. Visit Exemptions for more detailed information.
Codes of practice
Australia’s e-marketing and internet industries have developed separate, complementary codes of practice to supplement the Spam Act. The codes elaborate the requirements of the Spam Act and provide procedures to enable organisations to comply with the Act and handle spam complaints.
The e-Marketing code of practice was registered on 16 March 2005. The Australian Direct Marketing Association (ADMA), which developed the code of practice with other industry and consumer representatives, also developed the Best Practice Marketing Guidelines for industry.