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Aust
Constitution
& cyberspace

     overview

This profile considers regulation of spam in Australia, discussing the 2003 legislation, industry codes, litigation and the perspective provided by New Zealand.

The profile covers -

• this page - an introduction to the federal Spam Act 2003 and other legislation.
• framework - the regulatory architecture
• specific features of the Australian regime
• New Zealand - practice across the Tasman
• prosecutions - court action, ACMA penalties and other remedies
• codes - industry codes and consumer responses

There is a broader discussion about spam - its definition, impact, statistics and regulatory principles - in the Security & InfoCrime guide and in the note on overseas spam regimes

     the Australian anti-spam regime

The 2003 Spam Act (PDF) and associated Spam (Consequential Amendments) Act 2003 (here) was passed by Parliament in December 2003. The two Acts came into effect on 10 April 2004. They are to be reviewed within two years.

The legislation reflects the national government's telecommunication powers under the 1901 federal Constitution, discussed here.

The Spam Act 2003 - formally described here - prohibits the sending of unsolicited commercial messaging within Australia or on behalf of Australian entities.

That prohibition reflects the Government's statement that spam

is typically anonymous, indiscriminate and global. With these characteristics spam has become a popular vehicle for promotions that can be illegal, unscrupulous or use tactics that would not be commercially or legally viable outside the virtual environment. Some of the key issues raised by spam include privacy, illegal/offensive content, misleading and deceptive trade practices and burdensome financial and resource costs.

There are significant privacy issues surrounding the manner in which e-mail addresses and personal information are collected and handled. It is not uncommon for address collectors to covertly harvest e-mail addresses from the Internet, as users visit certain sites, and buy and sell them in bulk without the knowledge or consent of the owner. A report to the US Federal Trade Commission (FTC) estimates that roughly half of all unsolicited commercial e-mail contains fraudulent or deceptive content.

There are obvious community and regulatory agency concerns with the illicit content of a considerable amount of spam - including those that promote pornography, illegal online gambling services, pyramid selling, get rich quick schemes or misleading and deceptive business practices. The indiscriminate method of distribution is of particular concern as it is common for minors to receive spam that is pornographic, illegal or offensive.

The associated Spam (Consequential Amendments) Act 2003 - formally described here - makes various amendments to the Telecommunications Act and the ACA Act to enable effective investigation and enforcement of breaches of the Spam Act.







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