Penalties a spam warning for ISPs and Telcos

19 01 2009

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.

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