Financial penalties for breaches of the legislation have recently increased
Under most Commonwealth laws, financial penalties are expressed in terms of ‘penalty units’ instead of dollar figures. As an example, a maximum fine would generally be expressed as ’10 penalty units’ as opposed to ‘$1000’. The Australian Government recently increased the value of penalty units that apply to breaches of most Australian Government laws.
On 28 December 2012, the value of a penalty unit for calculating financial penalties increased from $110 to $170. The penalty unit value had not been adjusted since 1997. The civil penalties that apply for contraventions of the Spam Act 2003 are calculated using penalty units. This means that all financial penalties calculated using penalty units under the Spam Act 2003 will be higher for breaches of the legislation that occur on or after 28 December 2012.
The ACMA is currently in the process of updating its website and other information and fact sheets about the Spam Act 2003 to reflect the new higher penalty unit value.
- What laws are there against spam in Australia?
- Are some messages under the Spam Act permitted?
- What is the ACMA doing about spam?
- I'm receiving fax spam to my home fax or phone. What can I do?
- My mobile telephone number is registered on the Do Not Call Register. Why do I still receive commercial SMS messages?
- Where can I find information about how to comply with the Spam Act?
The ACMA enforces the Spam Act 2003 and accepts complaints, reports and enquiries about spam in Australia. The Spam Act specifically relates to messages sent to Australians by email, SMS, MMS and instant message that:
- offer, advertise or promote the supply of goods, services, land or business or investment opportunities
- advertise or promote a supplier of goods, services, land or a provider of business or investment opportunities
- assist a person to dishonestly obtain property, commercial advantage or other gain from another person.
These are called commercial electronic messages.
The Spam Act contains three main rules that message senders must comply with - consent, identification and unsubscribe facilities.
In Australia, commercial electronic messages sent to you must be sent with your consent. The Spam Act provides for two types of consent – express and inferred.
Express consent means you have deliberately and intentionally opted-in to receiving electronic messages from the message sender. Some examples include:
- ticking the box next to a statement seeking permission to send you marketing messages
- entering your mobile telephone number on a website to opt-in to receive regular ringtones and games on your phone, then replying to a subsequent SMS to complete the opt-in process
- entering your email address on a competition entry form and ticking a box next to a statement that says you wish to receive regular updates on the activities of the business
- contacting a business directly, in writing or on the phone to ask for information to be sent to you on an ongoing basis.
All of these examples demonstrate that you have been informed that providing your consent means you will receive electronic messages and have had the opportunity not to receive commercial electronic messages.
Inferred consent relies on a relationship you have with the message sender. The Spam Act provides that consent can be inferred from your conduct or the relationship that a message sender has with you. The message sender may decide that because you have an existing relationship, you would be interested in receiving electronic messages about similar products and services. For example, if you subscribe to a magazine or newspaper, it could reasonably be inferred from your ongoing relationship with the publisher that you would be amenable to receiving electronic messages promoting other services the publisher may offer.
In some circumstances, message senders may rely on inferred consent if you have consented to your email address or mobile telephone number being on a marketing database that is sold to businesses.
More information about complying with the Spam Act's consent requirements is available.
All commercial electronic messages must contain clear and accurate identification of the sender of the message and information on how you can contact the sender. If a message sender does not clearly and accurately identify themselves, the message should be reported to the ACMA.
Understanding identifying information
Identifying information about the message sender may be found in:
- the ‘from’ field or subject line of an email,
- the body of the message text,
- a website address and/or
- the sender identification of an SMS or MMS message.
If you can not determine who has sent the message, or feel the sender is not clearly identified, lodge a complaint with the ACMA.
More information about complying with the Spam Act's identity requirements is available.
Finally, all commercial electronic messages must contain an unsubscribe facility. This means there must be instructions on how you can opt-out of receiving messages. Whatever consent you may have given to receiving commercial electronic messages, you can withdraw it if you no longer wish to receive those messages. You should always use the same email address to unsubscribe as that used to subscribe.
A message sender has five working days to act on unsubscribe requests, and they will often be dealt with more quickly.
If a message does not contain an easy to use unsubscribe facility, the message should be reported to the ACMA.
Understanding and using an unsubscribe facility
Some examples of unsubscribe facilities include:
- A sentence at the bottom of an email advising ‘to unsubscribe, reply to this email with unsubscribe in the subject line’ or ‘to unsubscribe, click on this web address and enter your email address’
- A notification in a text message to reply ‘stop’ to opt-out or ‘unsub’;
- A notification to ‘change your preferences’ in your account to opt out of receiving commercial messages.
Important note: The unsubscribe facility should only be used if the message sender is known to you and you have established that the message is legitimate. If you have any doubt or are unsure about the message, delete it without replying or unsubscribing.
All commercial electronic messages must contain notification of how to unsubscribe from receiving further messages. If you receive a commercial electronic message that does not contain notification of how to unsubscribe, or continue to receive messages from a sender you have previously unsubscribed from, lodge a complaint with the ACMA.
Protecting your privacy and personal information
There are laws protecting your privacy and personal information in Australia. The Office of the Privacy Commissioner has extensive information on its website that can help you to understand how your personal information can be used and how to protect it.
If you think an email, SMS, MMS or instant message looks suspicious, do not respond to it - just delete it or report it. If the message seems genuine, you can contact the business and ask that they stop emailing you, unsubscribe using an unsubscribe link in the email, or make a complaint.
Certain types of electronic messages are partially exempt from the Spam Act. Permitted messages can be from:
- government bodies
- registered political parties
- religious organisations
- educational institutions (sent to current and past students and their households).
Purely factual messages are also exempt.
Permitted messages must still comply with the provision in the Spam Act which requires that a message must contain accurate information about the person or organisation that authorised the sending of the message, and how to contact that person or organisation.
The ACMA has a strategy for dealing with spam, including enforcement of the Spam Act, the development of technological solutions, partnerships with industry, cooperative activity with international regulatory bodies and education and awareness.
Summaries of the ACMA’s enforcement action to date are available.
You can now register a fax number used exclusively to send and receive faxes on the Do Not Call Register. More information about the inclusion of fax numbers on the register is available from the Do Not Call Register website.
My mobile telephone number is registered on the Do Not Call Register. Why do I still receive commercial SMS messages?
The Spam Act regulates the sending of commercial electronic messages by email, SMS, MMS and instant message. If you have received an unsolicited commercial SMS, lodge a complaint.
The Do Not Call Register prohibits most telemarketing calls to registered telephone numbers. The register does not prohibit the sending of commercial SMS to registered mobile telephone numbers.
If you run a business and plan to email current or prospective clients or customers, you need to know about the Spam Act. The ensuring you do not spam section has information about compliance with the Spam Act.