East Perth-based business seminar promoter Clarity1 Pty Ltd and its director, Wayne Robert Mansfield, have been fined $5.5 million for sending unsolicited emails, the first fines to be issued under the new Spam Act.
Federal Court Justice Robert Nicholson fined Clarity1 $4.5 million, and Mr Mansfield $1 million, for sending around 280 million spam emails of which 74 million were delivered between April 2004 and April 2006.
The company also has been banned from sending any unsolicited emails.
In April, Mr Mansfield told WA Business News it was business as usual following the decision, and declined to say whether an appeal was likely.
"We are just moving on with life," he said. "It is something that just played its way out and we are happy with the court process. I don't think it serves any purpose in commenting."
According to the court, Clarity1 undertook business under the name of Business Seminars Australia and Maverick Partnership.
Australian Securities and Investments Commission records show Clarity1 is jointly owned by Mr Mansfield and Perth woman Elaine Butcher. Records also show that Carlton Crest Hotel (Sydney) Pty Ltd has sought to wind the company up.
The ACMA case revolved around millions of messages sent via numerous different offshore IP addresses.
Among its defences, Clarity1 claimed it operated on behalf of charities, that the email addresses it used had been "harvested" prior to the introduction of the Spam Act 2003, that it had business relationships with recipients and that the email recipients had consented to receiving the emails.
On the latter point Justice Nicholson said in April: "First, the mere fact that Clarity1 sent a CEM (commercial electronic message) to an electronic address and did not receive a response from the recipient does not provide a proper foundation for an inference of consent. From that factual foundation, no such inference is logically open.
"Second, even less so is such inference likely to be open where the entire relationship between Clarity1 and the recipient is constituted in the absence of bilateral communication. There are no circumstances in such a case from which an inference can be drawn."
Australian Communications and Media Authority chairman Chris Chapman said spam caused significant inconvenience to individuals and businesses.
'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, ' he said.
The full text of an ACMA announcement is pasted below
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.
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.