1 June 2009
ACMA obtains interlocutory orders in SMS spam case
The Federal Court of Australia has granted interlocutory orders in relation to ACMA’s proceedings against Mobilegate Ltd, Winning Bid Pty Ltd, Jobspy Pty Ltd and individuals associated with those companies for allegedly breaching the Spam Act 2003 by sending unsolicited SMS.
ACMA alleges, among other things, that Mobilegate, Winning Bid and International Machinery Parts (now deregistered) sent or caused unsolicited SMS messages to be sent to Australian mobile telephone numbers via the premium rate telephone shortcode 19773366, 19910006 and/or 19724253 for the purpose of:
- offering to supply, advertise or promote a service known as ‘Safe Divert’, which was marketed as a text relay message service, or ‘Maybemeet’; and/or
- by deception, through the use of fabricated dating profiles, to dishonestly obtain a financial advantage or gain from Australian mobile telephone account holders.
ACMA also alleges that misleading or deceptive representations were made to members of dating websites in contravention of the Trade Practices Act 1974. These representations were designed to entice the recipient to reply to SMS messages at a cost of up to five dollars per message.
Interlocutory orders made in relation to Winning Bid Pty Ltd, Simon Anthony Owen, Tarek Andreas Salcedo and Glenn Christopher Maughan, require, among other things, that these respondents refrain from:
- creating, submitting or registering fictitious profiles on dating websites or social networking websites;
- posting or otherwise publishing photos or other images of individuals on dating websites or social networking websites without first obtaining the permission of those individuals to do so;
- communicating with users of dating websites or social networking websites on those websites through fictitious profiles.
Winning Bid was further ordered to remove or otherwise deactivate fictitious profiles on dating websites or social networking websites it has registered or placed on those websites.
‘This is an important case for the Australian Communications and Media Authority’, said Chris Chapman, ACMA Chairman. ‘We want to get the message out that the Spam Act applies to more than just email … it applies to all commercial electronic messages, which very much includes SMS.’
Consent orders were also obtained from Jobspy and Scott Mark Moles to the effect that, amongst other things, they also be restrained from creating, submitting or registering profiles on dating websites and social networking sites; posting photos or images of individuals on any website without permission; or communicating with users of dating or social networking sites.
The first respondent, Mobilegate, did not oppose orders proposed by ACMA which were in similar terms to those made by consent in relation to Jobspy.
The interlocutory order was granted on 22 May 2009, subject to the court making final orders following the hearing of the matter. A date for the final hearing has yet to be set.
Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980.
The Spam Act 2003 regulated unsolicited commercial electronic messages in Australia. Commercial electronic messages can be emails, SMS messages, MMS messages, instant messaging messages or any other similar messages.
The Act sets out that commercial electronic messages must have the following features:
- Consent – it must be sent with the recipient’s consent. They may give express consent, or consent may be inferred from their conduct and ‘existing business or other relationships’;
- Identify – it must contain clear and accurate information about the person or organisation that authorised the sending of the message; and
- Unsubscribe – it must contain a functional ‘unsubscribe’ facility to allow the recipient to opt out from receiving message from that source in the future.
The penalty provisions of the legislation came into force in 2004. At that time Australia was tenth in the ranking of spam-relaying countries for email spam, according to the Sophos list. For the 2008 calendar year, Australia had fallen to 32nd.
The Spam Act provides a range of enforcement options and ACMA determines an appropriate action on a case-by-case basis. Formal warnings are used by ACMA to indicate concerns about alleged contraventions and allow for the business or individual to take compliance action to prevent any future contraventions.
Enforceable undertakings can be offered to ACMA at any time and provide the opportunity for a business or individual to formalise its commitment to compliance with the Spam Act. ACMA may also give an infringement notice in relation to particular civil penalty provisions. In addition, ACMA can lodge proceedings in the Federal Court, including seeking an injunction. The legislation sets out penalties of up to $1.1 million a day for repeat corporate offenders.
ACMA commenced proceedings against the companies earlier this year. This is the first time ACMA has taken court action against companies sending unsolicited SMS spam. In the only previous proceeding brought by ACMA under the Spam Act, the Federal Court in 2006 ordered Clarity1 Pty Ltd and Mr Wayne Mansfield to pay $4.5 million and $1 million respectively, for sending unsolicited emails, and for using harvested address lists.
Consumers seeking more information about spam or wishing to complain about spam they may have received can do so at ACMA’s spam website: www.spam.acma.gov.au or by calling 1300 855 180.