In January this year, the Australian Communications and Media Authority (ACMA) issued infringement notices to the value of $110,000 to Optus Networks for allegedly sending electronic messages without accurate sender identification in contravention of the Spam Act 2003.
Seven months later, the ACMA found SmartyHost guilty of breaching the Spam Act for continuing to send commercial electronic messages in the form of emails to people who had already requested to be taken off its mailing list.
Last month, the ACMA scored its biggest win. In a landmark decision, the Federal Court in Brisbane imposed $15.75 million in penalties for contraventions of the Spam Act 2003. The decision was made against Mobilegate and Winning Bid following the Australian Communications and Media Authority’s first court action taken against unsolicited SMS messages.
Last week, a $110,000 penalty was imposed on Vodafone Hutchison Australia (VHA) by the ACMA for alleged breaches of the Spam Act arising from a marketing campaign where VHA together with two other companies, media agency New Dialogue and content aggregator Big Mobile, promoted certain Coca-Cola products through SMS.
These cases of alleged breaches of the Spam Act have one common thread. They involve big companies. Optus Networks is the Australian-based subsidiary of Singtel Optus Pty Ltd, a major telecommunications provider in the Asia-Pacific region. SmartyHost is a business division of MYOB Australia. Vodafone Hutchison Australia is a major player in telecommunications. And its case involves a well-known brand, Coke.
How major companies like Optus Networks, Vodafone Hutchison Australia or MYOB could have missed the requirements of the Spam Act is something that is difficult to understand.
As Mr Chris Chapman, ACMA Chairman, said in the recent Vodafone incident:
The ACMA considers that well resourced companies should be compliance leaders. There is no excuse for them to fall short in their obligations under the Spam Act for SMS marketing campaigns
In fact, not only in SMS marketing campaigns but in all marketing campaigns where electronic communication is involved.
The Spam Act 2003 is very clear that a commercial electronic message should have three basic features in order for it not to be considered as spam:
1. Consent – the message must be sent with the recipient’s consent
2. Identify – the message must contain clear and accurate information about the person or organisation that authorised the sending of the message; and
3. Unsubscribe – the message must contain a functional ‘unsubscribe’ facility to allow the recipient to opt out from receiving messages from that source in the future.
The ACMA reported that Optus Networks allegedly sent electronic messages without accurate sender identification (requirement #2), Vodafone Hutchison Australia on the other hand was penalised for issuing electronic messages without providing contact information and an unsubscribe facility (requirements #2 and #3). SmartyHost missed out on requirement #1 for continuing to send messages to people who had already requested to opt out.
With regard to the Mobilegate / Winning Bid case, the ACMA reported that the Mobilegate / Winning Bid companies were allegedly sending unsolicited SMS messages to recipients who were later charged up to $5 per message for using a service promoted in the unsolicited message. I acknowledge that their case may be more complicated than the three other cases, but “consent” still appears to be the core issue.
The penalty provisions of the Spam Act 2003 came into force in 2004. The ACMA reported that Australia at that time was tenth in the ranking of spam-relaying countries for email spam but had fallen to 35th for calendar year 2007.
Last year, Sophos reported that Australia’s position had dropped to 85th position.
With its recent success, Australia’s position should improve several notches further.