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.
The Australian Communications and Media Authority (ACMA) is responsible for enforcing the Spam Act 2003.
The Spam Act prohibits the sending of ‘unsolicited commercial electronic messages’ (known as spam) with an 'Australian link'. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.
The Spam Act covers emails, mobile phone text messages (SMS), multimedia messaging (MMS) and instant messaging (iM) and other electronic messages of a commercial nature. However, the Act does not cover voice or fax telemarketing. Telemarketing calls and faxes are covered by the Do Not Call Register.
The ACMA can take any of the following actions for breaches of the Spam Act:
- issue a formal warning
- accept an enforceable undertaking from a person or company—these undertakings usually contain a formal commitment to comply with specific requirements of the Spam Act. A failure to abide by an undertaking can lead to the ACMA applying for an order in the Federal Court.
- issue infringement notices
- seek an injunction from the Federal Court to stop a person sending spam
- prosecute a person in the Federal Court.
Penalties of up to $1.1 million a day apply to repeat corporate offenders. The penalty units referred to in the Spam Act are equal to $110 each. For example the penalty under section 25(5)(b) of the Spam Act for a company with a previous record of spamming and who sent two or more spam messages on a given day without consent is a maximum fine of 10,000 penalty units. This equates to a maximum penalty of $1,100,000.
Detailed information on breaches and penalties is set out in the Spam Act 2003.
ACMA’s enforcement actions