1 February 2010
The ACMA accepts enforceable undertaking from CommSec under the Spam Act
The Australian Communications and Media Authority has accepted an enforceable undertaking offered by Commonwealth Securities Limited (CommSec), following complaints that commercial electronic messages continued to be sent to customers after consent had been withdrawn.
The ACMA commenced an investigation following complaints from consumers alleging that CommSec continued to send them commercial messages, despite the fact that they had previously withdrawn their consent. The ACMA also identified that email campaigns conducted by CommSec in January, February and March 2009, did not provide an option to unsubscribe.
‘The ACMA expects that Australian businesses take note of this outcome,’ said Chris Chapman, Chairman of the ACMA. ‘Under the Spam Act, every person has the right to unsubscribe from receiving commercial electronic messages and to have that request acted on effectively and quickly. The failure to act on a request can result in significant penalties if a business is found to have breached the Act.’
The Spam Act requires that all commercial electronic messages include some form of unsubscribe facility, and that when a person or business withdraws their consent, they receive no further messages from that provider.
‘CommSec has undertaken to initiate stringent reviews of its systems and processes as a result of this investigation, and has demonstrated a commitment to making the internal changes necessary for ongoing compliance with the Spam Act,’ Mr Chapman said.
In addition to reviewing its compliance systems, CommSec has undertaken to pay to the Commonwealth a financial component of $55,000. An implementation plan has been agreed with the ACMA which includes the appointment of an independent consultant to assess CommSec’s system reviews, quarterly audits on its email campaigns for 12 months and the introduction of an annual training program. CommSec will report regularly to the ACMA on its progress.
The enforceable undertaking provided by CommSec is available on the ACMA’s website.
Complaints about spam can be made by calling the ACMA on 1300 855 180 or at www.spam.acma.gov.au.
Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980.
The Spam Act 2003 regulated 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.