WITH the Federal Government’s Spam Act now in effect, some Western Australian organisations are considering how they will conduct aspects of their business to make sure they are in line with the new laws.
The spam laws, which came into effect on April 10, mean that WA businesses sending unsolicited commercial electronic messages face hefty fines of up to $1 million per day.
The act, which became law on December 12 2003 with a proviso for its penalty provisions to come into effect 120 days later, makes it illegal to send unsolicited commercial emails, short message service, multimedia message service or instant messages from any server located in Australia.
While commercial messages are covered by the act, messages do no need to be sent in bulk to be considered spam. A single message can be spam.
Voice to voice communication via a telephone is exempt from the Spam Act and the laws do not apply to charities, religious organisations, political groups, government bodies or educational institutions contacting existing or former students.
Sending commercial electronic messages is now subject to strict rules with businesses required to include an unsubscribe facility that allows recipients to opt out of messages being sent to them in the future.
Businesses are also required to include clear and accurate details, in every electronic message sent, identifying who is responsible for sending it.
Further, commercial messages can only be sent when a business has an expressed or inferred consent to send the messages.
Expressed consent applies when there is a direct indication that it is okay to send a message, whereas inferred consent is implied through a business or other relationship with the person or their business.
The spam laws also make it illegal to supply, acquire or use list producing software that can be used to generate or harvest email addresses for the purposes of spamming.
Jackson McDonald senior associate Jamie Lyford said messages that were commercial in nature included those that offered a commercial transaction or directed the recipient to a location where a commercial transaction took place.
He said electronic newsletters sent out to customers or clients might also be covered by the legislation if they advertised or promoted the goods or services of a supplier.
Mr Lyford said in limited circumstances “additional information” such as the name and contact details of the sender, might be enough for a message to constitute an electronic commercial message – for example – in the case of sending an electronic newsletter.
Internet Business Corporation managing director Richard Keeves said the implications of the Spam Act were wide ranging for business.
“Any organisation that runs open relay mail servers needs to shut those mail servers down,” he said.
Mr Keeves said businesses needed to be careful when publishing their own details, for example, in a classified advertisement as the legislation referred to conspicuous publication of the recipients contact address.
Mr Keeves said businesses would need to indicate that they did not wish to receive spam if they published their electronic contact details in a conspicuous manner.
Business processes would also be affected, he said.
Mr Keeves said the actions of more than one employee contacting, for example, a potential sales target, could constitute spam and that businesses would need to be mindful of the implications.
However, Internet Industry Association chief executive Peter Coroneos said most legitimate businesses should have little difficulty in complying with the new laws.
“We think Australian businesses are largely following the legislation already,” he said.
“There has been a four month period to allow them to bring their businesses into line with the legislation.
“The legislation will make sure that they don’t contribute to the problem but will also ensure that businesses are all complying with best practice.”
However, the new spam laws are not expected to stem the flow of junk messages with up to 99 per cent of all spam generated and sent from overseas locations.
“More than half of all email in the world is now junk email. Legitimate email is being hidden by the noise,” Mr Coroneos said.
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