22 December 2009
Penalties awarded in email spam case in the Federal Court
The Australian Communications and Media Authority has been granted declarations and injunctions at the Federal Court in Brisbane under the Spam Act 2003 against Lance Thomas Atkinson. A penalty of $210,000 was also imposed.
‘There is simply no doubt that Australian citizens find large-scale distribution of unsolicited commercial electronic messages promoting the sale of products, in the circumstances of this case, very irritating and annoying,’ said Justice Greenwood in his judgment. ‘It causes all users of computers to constantly update spam filters and other protective devices to try to deflect the unwanted rain of electrons and digits disseminated by those who wish to do what Mr Atkinson has done. The Parliament has made its intention plain that unsolicited distribution of electronic emails (spam) is to be discouraged.’
The court found that Mr Atkinson caused unsolicited spam emails advertising herbal products, watches and other items to be sent to Australians. The ACMA tendered evidence to the court that it has received more than 100,000 reports from Australians about email messages which Atkinson caused to be sent.
Mr Atkinson has been restrained from sending or being involved in sending unsolicited commercial electronic messages to or from Australia for a period of seven years.
‘The ACMA’s case in this instance relied on reports made by the general public about spam,’ said Chris Chapman, Chairman of the ACMA. ‘Reports and complaints about spam from Australians are critical in the fight against spam. Without this information outcomes such as this could not be achieved.’
The ACMA’s investigation has been conducted with the assistance of the United States Federal Trade Commission and the New Zealand Department of Internal Affairs, both of whom have also taken action against Mr Atkinson.
‘I would like to thank the FTC and the New Zealand authorities for their valuable and coordinated assistance in the ACMA's action,’ Mr Chapman said. ‘This type of inter-agency, cross-jurisdictional collaboration is exactly what is required to combat the global scourge of spam.’
A new information sheet for consumers on protecting their inbox against spam is available on the ACMA website.
Consumers can also complain about or report spam at www.spam.acma.gov.au or by telephone 1300 855 180.
Media contact: Donald Robertson, Media Manager, on (02) 9334 7980.
Backgrounder
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 Spam 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.
Enforceable undertakings can be offered to the ACMA at any time and provide the opportunity for a business or individual to formalise its commitment to compliance with the Spam Act. The ACMA may also give an infringement notice in relation to particular civil penalty provisions. In addition, the ACMA can lodge proceedings in the Federal Court, including seeking an injunction. The legislation sets out penalties of up to $1.1 million a day for repeat corporate offenders.
