Spam Act Overview

11 Oct Spam Act Overview

On 10 April 2004 the penalty provisions of the Spam Act came into effect, making it illegal to send commercial electronic messages to or from Australia without the consent of the recipient.  That consent can either be express or inferred after considering the conduct of and relationship with the recipient.  Uncertainty may arise in determining a recipient’s consent and given the high penalties imposed under the Spam Act, if there is any doubt as to consent, confirmation should simply be sought from a potential recipient.

Once consent has been established, the Spam Act imposes the following further requirements when sending commercial electronic messages:

1. The identity of the person or organisation sending the message together with accurate contact details of the sender must be included in each message.  The sender information must be reasonably likely to be accurate for a period of 30 days after the date upon which the message is sent.
2. Any message forwarded must provide the recipient with the ability to unsubscribe from future commercial electronic messages.  The unsubscribe message should be clear and conspicuous and the unsubscribe facility easy to use.

The Australian Communications Authority (ACA) is responsible for enforcing the provisions of the Spam Act.  The maximum penalties under the Spam Act are substantial, with organisations liable to pay up to $220,000 ($44,000 for individuals) for the first contravention for a single day.  Repeat offenders will be dealt with harshly, with organisations facing a fine of up to $1.1 million per day (or $220,000 for individuals).

If you need further information or have any queries please contact Harris & Company on (02) 9261 8533