Court provides clarity on spamming

The top media watchdog is claiming its first legal victory against spammers under new laws aimed at quelling unsolicited email following a Federal Court decision in Perth.

The Australian Communications and Media Authority said it welcomed the decision of Justice Robert Nicholson last week that dismissed the defences of East Perth-based business seminar promoter Clarity1 Pty Ltd, run by Wayne Mansfield. But, in a brief comment,  Mr Mansfield said 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: “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.”

The Federal Court will determine the penalty at a later date.