27 October 2006
ACMA welcomes Federal Court spam decision
The Australian Communications and Media Authority welcomes the decision of Justice Nicholson in the Federal Court in Perth today to award a pecuniary penalty of $4.5 million against Clarity1 Pty Ltd and $1 million against its managing director, Mr Wayne Mansfield, for contravening the Spam Act 2003 (Spam Act).
ACMA’s prosecution of Clarity1 is the first prosecution under the Spam Act.
On 13 April 2006, Justice Nicholson found that both Clarity1 and Mr Mansfield were in breach of the Act for both sending unsolicited commercial electronic messages, and for using harvested address lists.
Among other matters, ACMA submitted to the Federal Court that Clarity1 Pty Ltd and Mr Wayne Mansfield sent out at least 231 million commercial emails in twelve months after the Spam Act 2003 commenced in April 2004, with most of these messages unsolicited and in breach of the Act.
‘ACMA’s action in this case underscores its vigilant approach to the enforcement of the Spam Act and combating spam,’ said Mr Chris Chapman, ACMA Chairman. ‘Spam causes significant inconvenience to individuals and businesses: disrupts email delivery, clogs up computer systems, reduces productivity, wastes time, irritates users and raises the cost of internet access fees.’
‘This judgement provides a strong warning to Australian spammers that contraventions of the Spam Act can result in substantial penalties being awarded against individuals and organisations, ’said Mr Chapman.
‘ACMA has previously demonstrated its determination to pursue important matters vigorously, a determination that will be a key attribute in its continuing success across its broad regulatory responsibilities,’ he added.
Media contact: Donald Robertson, ACMA Media Manager, on 02 9334 7980.
While most people see it as the electronic version of junk mail, definitions of spam vary from country to country. Under Australian legislation, spam is identified as an ‘unsolicited commercial electronic message’.
Australia's anti-spam law - the Spam Act 2003
Australia’s spam legislation - the Spam Act 2003 - came into effect on 10 April 2004. The Spam Act makes it illegal to send, or cause to be sent, unsolicited commercial electronic messages that have 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 commercial electronic messages: emails, mobile phone text messages (SMS), multimedia messaging (MMS) and instant messaging (iM). However, the Act does not cover voice or fax telemarketing. The legislation sets out penalties of up to $1.1 million a day for repeat corporate offenders.
The Act also prohibits the use of address-harvesting software and harvested address lists to send spam.
The three key conditions of the Spam Act
To comply with Australia's spam laws, a commercial electronic message must meet all the following conditions.
Consent - The message must be sent with the recipient’s consent.
Identify - The message must contain accurate information about the person or organisation that authorised the sending of the message.
Unsubscribe - The message must contain a functional unsubscribe facility to allow the person to opt out from receiving messages from that source in the future.
ACMA’s five-point strategy to combat spam
The Australian Government is working to fight spam in five ways:
- Legislation and enforcement to reduce spam originating in Australia;
- Education and awareness;
- Technological solutions;
- Partnerships with industry; and
- International cooperation.
Legislation and enforcement
Australia’s position as a spamming nation has fallen considerably since the Spam Act came into effect, with Australia going from the 10th spamming nation in April 2004 to 25th at end-June 2006 (Sophos data).
The fall in spam generated in Australia can be traced to a number of activities; including extensive education of Australian businesses, the early action of the emarketing industry to develop a code of practice concerning compliance with the Spam Act and strong enforcement action by ACMA.
ACMA also works closely with other government bodies to combat spam and criminal activity linked to spam.
Education and awareness
Education is vital to curbing the spread of spam. ACMA has disseminated education material to businesses and consumers, and delivered a series of free seminars nationally about Spam Act compliance for small to medium-sized businesses.
Zombies (virus-infected computers) are one of the major methods used to spread spam. Zombies also hinder spam investigations, as they help spammers to hide the source of their emails. ACMA has rolled out an internet security initiative to find and cleanse zombies in Australia, with an extension of this initiative announced yesterday.
ACMA has introduced SpamMATTERS, a software tool that allows the public to download a program into Microsoft Outlook or Outlook Express, and simultaneously report and delete spam with a single mouse-click. The spam reported using the tool is sent to a database where it is automatically analysed to track its origins. Data from SpamMATTERS formed part of ACMA’s investigation into Clarity1 Pty Ltd and Mr Wayne Mansfield. The tool is available for free download from ACMA’s website.
Spam can only be fought effectively with cooperation and input from industry. To this end, ACMA works with ISPs, mobile carriers, legitimate e-marketers and global software companies.
No single country can halt spam. It is a global problem that requires coordinated global action. Unfortunately, approximately 99 per cent of the spam that reaches Australians comes from overseas. Fighting spam nationally is vital, but long-term gains will only be made through cooperation with other countries and overseas regulators.
ACMA’s Anti-Spam Team maintains close relationships with ISPs, mobile carriers, global anti-spam and anti-virus software bodies and other regulators around the world. The team works with overseas anti-spam agencies by sharing cross-border intelligence, closing down compromised servers, educating consumers and business and exchanging details of technological and policy solutions.