The AMCA has a broad range of projects, policies, programs and initiatives to fight spam. These case studies highlight different aspects of the ACMA’s enforcement activities and various breaches of the Spam Act 2003, including:
- SMS spam originating in Australia: car trading advertising
- SMS spam originating overseas: racing tips software advertising
- Email spam originating in Australia: internet pyramid marketing scheme
- Email spam originating in Australia: ACMA v Clarity1/Wayne Mansfield
Please note that a number of these case studies refer to the Australian Communications Authority (ACA), which was the organisation responsible for spam enforcement before 2005. The ACMA was established on 1 July 2005 by a merger of the ACA and the Australian Broadcasting Authority (ABA), and is now responsible for spam enforcement in Australia.
Since the commencement of the Spam Act in April 2004, the company Clarity1 and its director Wayne Mansfield were responsible for sending out in excess of 213 million commercial electronic messages advertising his business, operating under the trading names of Business Seminars Australia and Maverick Partnership.
The ACMA’s investigation of Clarity1 and its director Wayne Mansfield resulted in the matter being heard by the Federal Court in Perth. On 13 April 2006, Justice Nicholson found that both Clarity1 and Mr Mansfield were in breach of the Spam Act for both sending unsolicited commercial electronic messages, and for using harvested address lists.
A defence raised in this case was that the sender relied upon inferred consent having obtained email addresses prior to the commencement of the Act and given the email recipients the opportunity to withdraw their consent. This defence was dismissed by the court, which found that the ‘silence’ or non-response of the email recipients did not provide a basis for consent under the Spam Act.
On 27 October 2006 Justice Nicholson awarded a financial penalty of $4.5 million against Clarity1 Pty Ltd and $1 million against its managing director, Mr Wayne Mansfield.
SpamMATTERS forensic data was an important source of information in this successful prosecution of a major Australian spammer. (Australian Communications and Media Authority v Clarity 1 Pty Ltd,  FCA 1399).
In December 2004, a sole proprietor was the subject of complaints to the ACA about unsolicited emails. Investigations revealed that the sender of the emails was located in South Australia and a search warrant was obtained by the ACA to enable a search of the sender’s premises. Analysis of the files seized during the search revealed that the respondent—an individual—was in possession of more than 20,000 email addresses, mass-mailing email software and email address harvesting software. The respondent had receipts for the purchase over the internet of some 5.5 million email addresses.
The email message sent out by the respondent offered the opportunity to sign up to a pyramid-style marketing scheme and the text of the message clearly fell into the category of a commercial electronic message as defined in section 6 of the Spam Act. The respondent admitted to sending large numbers of unsolicited commercial emails to various addresses and buying email address lists over the internet.
The respondent was not the originator of the pyramid scheme, but had joined the scheme through an offshore website. In this case, ACA investigators determined that the most appropriate course of enforcement action was to seek an enforceable undertaking that the respondent would not engage in sending unsolicited commercial electronic messages in the future. The individual entered into the enforceable undertaking, and was issued with an infringement notice and paid a $660 penalty.
Between June 2004 and January 2005, the ACA received complaints about a company sending unsolicited commercial SMS messages advertising its software that claimed to predict the winners of horse races. Following an investigation, the ACA concluded that the company and a specialist e-marketer it had engaged sent out more than 50,000 SMS messages in breach of the Spam Act. It appeared that the mobile phone numbers of the recipients were copied from telephone directories.
The two companies involved had engaged a third party - an offshore SMS messaging firm - to do the physical sending of the SMS messages from offshore. It was argued that the sending of the messages was therefore not covered by the Spam Act. However, the Spam Act applies to any message with an ‘Australian link’. In this case, the companies who authorised the sending of the messages were Australian companies and subject to the Act.
The ACA issued infringement notices to the two companies for breaching the Spam Act with total penalties of $13,200. The specialist e-marketing company also gave an enforceable undertaking to comply with the Australian e-Marketing Code of Practice.
Between September 2004 and February 2005, the ACA received complaints about an organisation sending unsolicited commercial text (SMS) messages. Each complainant had advertised a car or motorcycle for sale in newspaper classified advertisements before receiving the text message. The messages were sent by a car trading company that copied the complainants’ mobile phone numbers, as published in the classified advertisements, to advertise the car trading company’s services and website. The car trading company argued that people who had conspicuously published their mobile phone number to advertise the sale of their car should reasonably expect to be contacted and in this way had given consent to receiving the messages.
However, the Spam Act makes clear that consent cannot be inferred from the mere fact that an electronic address has been published. The ACA determined that people selling cars published their mobile phone numbers in order to be contacted by potential buyers, not to receive text messages on their mobile phones advertising a car sales website. The messages were clearly unsolicited commercial electronic messages within the meaning of the Spam Act. The company was issued with an infringement notice with penalties of $6,600 for breaching the Spam Act.