Adult Content industry
This page considers the framework for regulation of
spam in Australia.
It covers -
The 2003 Spam Act (Cth) (PDF)
and Spam (Consequential Amendments) Act 2003
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
The Spam Act 2003 - formally described here
- prohibits the sending of unsolicited commercial messaging
within Australia or on behalf of Australian entities.
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
Its main provisions are discussed below. In essence, they
involve a framework to enable development of industry
codes, an investigatory role for the ACA regarding complaints
and authorisation of warrants to monitor compliance with
the Act and regulations.
The legislation is weaker than the EU 1997 Distance
Selling Directive (which builds on the 1995 Data
Protection Directive discussed
in our Privacy guide), the 2000 Electronic Commerce
Directive and 2002 Directive on Privacy &
The importance of global regulation in dealing with spam
means that Australia will come under pressure to harmonise
its legislation with that in the EU and to move beyond
broad statements about bilateral cooperation, such as
the July 2004 Memorandum of Understanding (MOU) between
the Australian Competition & Consumer Commission (ACCC),
the Australian Communications Authority (ACA), the US
Federal Trade Commission, the UK Department of Trade &
Industry, the UK Information Commissioner and UK Office
of Fair Trading.
The 2003 enactments should be seen as a major step on
a long road, rather than arrival at a final destination.
Development and passage of the legislation reflected sustained
lobbying by the Internet Industry Association (IIA),
consumer groups such as Coalition Against Unsolicited
Bulk Email Australia (CAUBE.AU)
and other entities that sought effective regulation of
It also reflected community consultation by the National
Office for the Information Economy (NOIE), centred on
the 2002 interim and 2003 final
versions of the NOIE Spam Report, and discussions
in regional/global telecommunications regulation fora.
The consultation encompassed public submissions by bodies
such as the federal Privacy Commissioner and Australian
Information Industry Association. It was followed by a
Senate Committee report
on the draft legislation.
That legislation received, at best, lukewarm support from
direct marketers, from a number of charitable, religious
and education bodies and from libertarians opposed to
a restriction on free speech.
That was accommodated through a range of exclusions, most
of which will ideally be tightened in future through amendment
of the Act or through the articulation of effective regulations
under the Act and industry codes of practice.
Most provisions of the Act commenced on 10 April 2004,
120 days after the legislation received Royal Assent.
The expectation is that will ensure that persons or enterprises
that currently unknowingly send spam will be able to correct
their behaviour without penalty during the 'sunrise' implementation
Act defines spam as "unsolicited commercial electronic
messaging", embracing email,
mobile text messaging (SMS)
and some other electronic messaging.
The definition excludes voice to voice telemarketing.
The 8 April 2004 Spam Regulations 2004 (here)
- regulations to the Spam Act 2003 exclude facsimile
messages from the definition of commercial electronic
message (and therefore from being covered by the Spam
Act). In the US the Telephone Consumer Protection
Act 1991 (TCPA) has crimped fax spam, with prosecution
by the Federal Communication Commission resulting in a
US$5.4 million fine against Fax.com.
The TCPA prohibits facsimiles that advertise the "commercial
availability or quality of any property, goods, or services
which is transmitted to any person without that person's
prior express invitation or permission". Exemptions
for transmissions to entities with which the sender has
a "prior relationship" are being tightened.
The Australian legislation is concerned with commercial
messaging, ie messages that offer a commercial transaction
or point the recipient to a location where a commercial
transaction takes place. To be considered spam, the message
must have been sent without the recipient's consent.
Such consent may be expressly given or may be inferred
from the behaviour or business or other relationships
of the recipient. In some circumstances - one of the most
criticised aspects of the legislation - consent may also
be inferred by "conspicuous publication" of
an electronic address.
In the Second Reading Speech the Minister for Communications,
Information Technology & the Arts commented
Spam Bill 2003 has as its cornerstone the principle
of consent. Has the recipient asked for this communication—which
constitutes explicit consent—or is there implicit
consent? Implicit consent would exist where there is
an existing business or other relationship. Drafting
the bill has been a delicate balancing act. We must
balance the legitimate needs of business and the concerns
of the community. ...
The bill hits the right targets. We are hitting those
who send spam and the techniques they use, while avoiding
a restriction on the right to free speech—be it
political, religious or general free speech. The bill
also avoids any undue burden on industry or significant
restriction on generally accepted business practices.
It provides a springboard to develop and use the international
arrangements that will be essential to deal with spam
effectively because of its global nature.
Act does not refer to bulk messaging. In principle a single
unsolicited commercial electronic message could thus be
spam, although enforcement by government is unlikely.
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