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prosecutions
This page considers prosecutions in Australia and
New Zealand regarding spam.
It covers -
Information
about overseas spam prosecutions is here.
cases
As of October 2006 there had been one judicial decision
under the Australian Spam Act 2003, with Justice
Nicholson in the Federal Court in Perth awarding a pecuniary
penalty of $4.5 million against Clarity1 Pty Ltd and $1
million against its managing director Wayne Mansfield
for contravention of the Act.
The court found that Clarity1 and Mansfield were in breach
of the Act for sending unsolicited commercial electronic
messages and using harvested address lists.
ACMA action
As of August 2005 the Australian Communications Authority
(ACA) - now the Australian Communications & Media
Authority (ACMA) -
- had
required over 200 Australian businesses to "amend
their practices to comply with the Act"
- five
of those businesses were fined by the ACA for "substantial
breaches"
- three
received formal warnings and one gave an enforceable
undertaking
The
major fines concerned a Melbourne car dealer that text-messaged
people after scraping their mobile phone numbers from
newspaper classified advertisements and fines imposed
on two companies that used an offshore agent to send over
50,000 commercial SMS promoting gambling software. It
is unclear whether the $13,200 penalty
in the gambling SMS cases is much of a dissuader.
In June 2005 the ACA announced
that it was taking action in the Federal Court against
an alleged global spammer based in Perth and was seeking
an interim injunction until the court hearing (noted above).
The ACA alleged that Clarity1 Pty Ltd (which used the
trading names Business Seminars Australia and the Maverick
Partnership) and its managing director Wayne Mansfield
sent at least 56 million commercial emails during the
year after commencement of the Spam Act 2003, with most
of those messages "believed to have been unsolicited
and in breach of the Act".
Clarity1, listed by anti-spam watchdog Spamhaus as allegedly
one of the world's top 200 spammers, allegedly harvested
some of the email addresses to which messages were sent.
In June 2007 ACMA fined
the Pitch Entertainment Group $11,000 for "extensive
breaches" of the Spam Act in what was described as
the largest fine imposed by ACMA to date under the Spam
Act.
Pitch (aka Splash Mobile) sent over one million commercial
messages to mobile phones without a functional unsubscribe
facility. Pitch and its directors have entered into an
enforceable undertaking that requires future compliance
with the Spam Act - arguably more serious than the fine,
which represents a fraction of a cent per message - and
contains stringent compliance reporting and staff education
obligations.
In July 2007 ACMA announced
that it had issued DC Marketing Europe Ltd with an Infringement
Notice, carrying a penalty of $149,600, for "extensive
breaches" of the Spam Act 2003.
The penalty concerned 102 contraventions relating to 'missed
call' marketing in July and August 2006. Missed call marketing
involves automatically sending short duration calls to
mobile phones, thereby leaving a 'missed call' message
on the phone.
DC Marketing's missed call activity meant that when the
mobile owners returned the missed call, they received
marketing information the marketer. ACMA commented that
Consumers
had no way of knowing who the missed call was from before
calling DC Marketing and so effectively paid to receive
DC Marketing's marketing messages. The missed call marketing
messages sent out by DC Marketing were unsolicited,
did not identify the sender and did not contain an unsubscribe
facility, each of which is a breach of the Spam Act.
In
January 2009 ACMA fined major telco Optus $110,000 for
sending 20,000 spams to its customers. Optus had sent
the messages to customer mobile phones to promote the
OptusZoo entertainment service. In using the sender identification
966 Optus assumed that recipients would make the connection
between 966 on a
mobile phone keypad and the word 'ZOO'. ACMA indicated
that was in sufficient identification. Negotiations between
Optus and ACMA to resolve the issue were unsuccessful,
with ACMA then imposing the fine.
In 2010 ACMA accepted an enforceable undertaking offered
by Commonwealth Securities Limited (CommSec), the securities
arm of one of Australia's largest banks, following complaints
that CommSec continued to send messages to customers after
consent had been withdrawn. ACMA's investigation also
identified that email campaigns conducted by CommSec in
2009 did not provide an option to unsubscribe.
The regulator indicated that "CommSec has undertaken
to initiate stringent reviews of its systems and processes
as a result of this investigation, and has demonstrated
a commitment to making the internal changes necessary
for ongoing compliance with the Spam Act". CommSec
agreed to pay $55,000 to the Commonwealth, along with
appointment of an independent consultant to assess CommSec’s
system reviews, quarterly audits on its email campaigns
for 12 months and the introduction of an annual training
program.
other remedies
It should be noted that some spam-related offences were
subject to federal law prior to introduction of the Spam
Act in 2004.
These include -
- breaches
of the Trade Practices Act 1974 (Cth) and Therapeutic
Goods Act 1989 (Cth) through false or misleading
claims (with untested suggestions that the Trade Practices
Act also encompassed an offence regarding forged
headers, falsified addresses and false opt-out facilities)
- prohibition
under the Interactive Gambling Act 2001 (Cth)
of some forms of online
gambling and their promotion
- offences
under the Crimes Act 1914 (Cth) regarding use
of email (or other media) in a way that is menacing
or harassing (with suggestions that the offences could
extend to offensive sexually-related content)
The
Cybercrime Act 2001 (Cth) - replacing s76E provisions
in the Crimes Act and the Criminal Code Act
1995 - includes offences regarding interference with,
interruption or obstruction of the lawful use of a computer
by means of a telephone line or ISP. Those provisions
were successfully used in prosecution during 2000 of a
spammer who trespassed on and damaged a third party computer
system in relaying commercial messages.
There are no specific provisions in the Corporations
Act 2001.
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