Compare And Contrast International Attempts To Regulate Spam With The Spam Act 2003 (Cth)

1474 words - 6 pages

Spam is expected to account for approximately 40% of all Internet email delivered this year, contributing about US$2-3 of the average consumer's monthly Internet bill. The law, despite having a long (and undistinguished) history with spam, has been caught short in its response to this unexpected and unwelcome phenomenon. As a preliminary matter, it is necessary to define what constitutes spam. CAUBE-AU (the Coalition Against Unsolicited Bulk Email, Australia) defines spam very broadly as any electronic mail message that is:a. transmitted to a large number of recipients; andb. not explicitly and knowingly requested by some or all of those recipients.6Despite the use in its title the Spam Act 2003 (Cth) (the Act), the term 'spam' is not defined. Instead the Act regulates 'unsolicited commercial electronic messages'.Spam Act 2003 (Cth)OverviewAs set out in the second reading speech, the key features of the Spam Act 2003 (Cth) (the Act) include:a consent-based or "opt-in" basis for commercial electronic messaginga recognition of existing customer-based relationsa restricted, and appropriate, recognition of implied consent, where people advertise their electronic addressa requirement for accurate sender's details and a functional unsubscribe facilitya support for the development of complementary industry codesa flexible and scalable civil sanctions regime for breaches.The Act will ban the supply, acquisition and use of addresses harvesting and address list generation software for the purpose of sending spam, as well as the list produced against using the software.Courts will also be able to compensate businesses which have suffered at a spammer's hands, and the courts will be able to recover the financial gains made from spammers.Main Effect of LegislationIn summary, the Act regulates:the sending of certain commercial electronic messages with an Australian link; andthe dissemination and use of address-harvesting software and electronic address list directly or indirectly produced using that softwareA person who contravenes the Act may have to pay civil penalties (of up to $1,100,000 for repeat offender companies) and may be the subject of an injunction.The commercial electronic message rules and exceptionsUnder the Act, the three basic rules for commercial electronic messages with an Australian link are:unsolicited commercial electronic messages must not be sent (unless the recipient consents)all commercial electronic messages must include accurate sender information, andall commercial electronic messages must contain functional unsubscribe facilitiesConsent can be given expressly or it can be reasonably inferred from the conduct, business and other relationships of the recipient of the message. Consent is not to be inferred from publication of the recipient's email address. It can be inferred if the email address if the email address was conspicuously published and:the email address was a work related addressit would be reasonable to assume that the...

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