Spam Act Essay
The Spam Act 2003 (Cth) (Spam Act) contain specific provisions regarding direct marketing. It is useful for legal practitioners to have working knowledge of the Spam Act because (among other things), the Australian Privacy Principles (APPs) provide that where the act or practice of an APP entity (being the agencies and organisations that have responsibilities under the Privacy Act) is subject to the Spam Act, APP 7 does not apply to the extent that the Spam Act applies: APP 7.8.
This Guidance Note outlines the key provisions of the Spam Act, and explains selected key definitions.
Prohibition on sending unsolicited commercial electronic messages
“Spam” is a reference to unsolicited commercial …show more content…
The Spam Act explains this concept in detail: s 6 of the Spam Act. In essence, a commercial electronic message is one that:
• offers, advertises or promotes the supply of goods, services, land or business or investment opportunities;
• advertises or promotes a supplier of goods, services, land or a provider of business or investment opportunities; or
• assists or enables a person to dishonestly obtain property, commercial advantage or other gain from another person.
This prohibition is subject to limited exceptions. For example, certain messages from government bodies or registered charities may be exempt.
Importantly, this prohibition does not apply if the relevant electronic account-holder consented to the sending of the message. In practice, this means that to send commercial electronic messages, meeting the consent requirement is mandatory.
What constitutes consent
Consent is another concept that is central to the Spam Act. A useful reference for legal practitioners is Schedule 2 of the Spam Act. The object of Schedule 2 is to define the expression “consent” when used in relation to the sending of an electronic message. For example, it explains when consent is express consent, and includes examples of when consent is …show more content…
• The requirement to include a functional unsubscribe facility: s 18 of the Spam Act.
In summary, these requirements mean all commercial electronic messages must contain clear and accurate identification information of the sender of the message. It should also include information on how the sender can be contacted. Also, all commercial electronic messages must contain instructions on how an individual can opt-out of receiving messages. It is useful to note here that even if an individual has given consent to receive commercial electronic messages, he or she can withdraw consent at any time. This is consistent with the concept of consent under the APPs. The APPs explains that an individual may withdraw his or her consent at any time (which should be an easy and accessible process): APP B.45.
Australian Communications and Media Authority
Australian Communications and Media Authority (ACMA) is the government body responsible for the regulation of broadcasting, the internet, radiocommunications and telecommunications. The ACMA enforces the Spam Act 2003 and accepts complaints, reports and enquiries about spam in