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Posts Tagged ‘Spam Act 2003’

The Federal Court has issued a fine of $15.75 Million against spammers found guilty of using an elaborate scheme to deceptively obtain mobile phone numbers and spam them.

In August 2009 the Australian Communications and Media Authority (‘ACMA’) obtained default judgment against Mobilegate Ltd and Winning Bid Pty Ltd – and three individuals – Mr Simon Anthony Owen, Mr Tarek Andreas Salcedo and Mr Glenn Christopher Maughan.

The action commenced in late 2008 when the ACMA learned of the highly organised plan, where the ACMA alleges the spammers obtained mobile telephone numbers from dating websites, after posing as members of these websites. It is then alleged that:

• after the numbers were obtained, unsolicited messages were sent to the mobile phone numbers offering the opportunity to chat via SMS using services described as the ‘Safe Divert’ or ‘Maybemeet’ services;
• the chat was not offered by genuine members of dating websites but employees of Mobilegate and Winning Bid;
• consumers were charged up to five dollars per message; and
• when users questioned whether the messages were from a real person, they were told that it was a real person who was using the “Safe Divert” service to keep their mobile phone number private.

The ACMA claims that the spammers obtained more than $2 million from their scheme, which was in contravention of the Spam Act 2003.

The judgment is seen as a win for the ACMA in its fight against breaches of the Spam Act 2003, and is sure to serve as a serious warning to potential spammers.

Earlier this year the ACMA issued fines against Optus for breaches of the Spam Act 2003, as part of its campaign against spammers.

Tags: ACMA, Cooper Mills Lawyers, IT Lawyers, Spam, Spam Act 2003, Spam Lawyers, Telecommunications Lawyers
Posted in General, Spam | Comments Off

The Australian Communications and Media Authority (ACMA) has obtained an enforceable undertaking from MYOB Australia E1 Pty Ltd for breaches of the Spam Act 2003.

Following an investigation by the ACMA, a SmartyHost, division of MYOB was found to have been sending emails to people who had unsubscribed from its mailing lists. The ACMA found that SmartyHost had not actioned the unsubscribe requests.

Chris Chapman, Chairman of the ACMA said:

The Spam Act makes it clear that commercial electronic messages cannot be sent without the consent of the recipient….. As such it is central to the working of the scheme that recipients of such messages have the right to withdraw their consent at any time.

s18 of the Spam Act 2003 makes it a specific requirement that commercial electronic messages must have an unsubscribe facility (that works!) which must remain active for at least 30 days after the message is sent.

The ACMA’s action is consistent with its recent get tough approach to enforcement of Spam and the Do Not Call Register

Tags: ACMA, IT Lawyer, Spam Act 2003, Telecommunication Lawyers
Posted in Spam | Comments Off

In a decision that should send a warning to all Australian ISPs and Telcos, Optus Networks Pty Ltd (‘Optus’) has been fined $110,000 for breaching the Spam Act 2003.

The penalties were the result of two infringement notices issued by the Australian Communications and Media Authority (ACMA) after Optus allegedly sent electronic messages without accurate sender identification.

The infringements

The infringement notices were in relation to 20,000 commercial electronic messages sent by Optus to the carrier’s mobile phones users, to promote its OptusZoo entertainment service. The messages were sent with a sender identification of ‘966’ (these numbers spell out ‘Zoo’ on a phone keypad).

ACMA claims that Optus assumed that recipients of the messages would make the connection between ‘966’ and ‘Zoo’.

As we all know, 966 can represent a number of different words on a key pad, for example Zon or Yon.

Spam Act 2003

The Spam Act 2003 regulates unsolicited commercial electronic messaging in Australia. Commercial electronic messages include emails, SMS messages and MMS messages.

The Act sets outs that commercial electronic messages must involve direct or inferred consent, identify the sender and give the recipient the ability to unsubscribe.

The Spam Act provides a range of enforcement options, including formal warnings, enforceable undertakings, infringement notices and Federal Court proceedings. The legislation sets out penalties of up to $1.1 million a day for repeat corporate offenders.

We think that this will not be the last of the fines in light of a chain of recent investigations in the ISP Telco market, and comes hot on the heels of an enforceable undertaking given by Oxygen8 Communications last month.

It is still surprising to see that many clients still come to us with marketing campaigns for review, which in some way fall foul of the Spam Act – of even more surprise is that simple Spam Act compliance requirements, such as functional unsubscribe facilities, were not included in proposed email campaigns.

Tags: ACMA, email, Fines, ISP, ISP and Telco Law, MMS, Regulatory compliance, SMS, Spam, Spam Act 2003, Telco
Posted in ISP and Telco Law, Spam | Comments Off