Penalties for the Spam Bill have not yet come into effect, but lawyers have already picked out potential potholes in enforcing the legislation.
The Spam Bill 2003, which passed Senate approval on Wednesday, could potentially catch big time spammers but was more about compliance, than punitive action, according to the Australian Communications Authority.
The legislation has outlawed the sending of unsolicited commercial electronic messages to Australians, which includes emails, mobile text messaging and instant messaging.
John Haydon, executive manager, consumer and universal service obligation, at Spam Bill enforcer ACA said: 'The ACA is committed to compliance ahead of punitive action. Achieving punitive action might make spectacular headlines, but it won't change the consumer experience.'
Haydon, speaking at a debate on the Spam Bill run by legal firm Baker & McKenzie, explained the Spam Bill would have a tiered structure of possible penalties, which was designed to catch repeat offenders rather than the accidental spammer.
Companies which committed one contravention may receive a formal warning. Repeat offenders could face infringement notices and possible court action. If after these penalties had been dealt out a company was found to have spammed again, it could be hit with the maximum possible penalty of $1.1 million per day of contravention.
'The ACA will promote self regulation as mush as practicable,' Haydon said.
The Bill was designed to catch those companies that had a business model based around spam, said Lindsay Barton, manager of online policy, National Office of the Information Economy (NOIE). Barton said consent, not the content nor quantity of the messaging, was the key to defining spam.
However the legislation still had a few wrinkles to iron out, Barton explained. For instance, to comply with the Bill, electronic commercial messages must have an unsubscribe function. However in the case of short messaging service (SMS) or instant messaging (IM) as yet there is no functional unsubscribe available in the technology. Additionally, in IT folklore and in many companies' email policies, it is a commonly held mantra to not reply to spam as that could indicate to the spammer they have hit an active email account.
Additionally Patrick Fair, Baker & McKenzie, partner in IT and Communications Group, pointed out the nuances of interpretation of the term 'implied consent' detailed within the legislation. Under the provisions of the legislation, consent is defined as express and 'consent that can be reasonably inferred from the conduct and business and other relationships of the individual or organisation concerned.' Consent can also be inferred from conspicuous publication of an electronic address such as on a website.
Spam Bill hard to swallow
By Siobhan Chapman on Dec 5, 2003 12:00AM