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Don't Get Labelled as a Spammer!

Mark Edwards

If you send your clients a regular email either personally or via a third party this is a must read article!

Thursday, 18 September 2003 saw the introduction of the Spam Bill 2003 into the Australian House of Representatives. Should it pass in its current form, this act will become law 120 days after receiving royal assent. So by early 2004 it could be illegal to send someone an unsolicted commercial email.

From reading the Bill, we will be one of the first countries to have anti-spam legislation with bite. As I have said in previous articles, unsolicited email is a burden on all of us because it shifts the cost from the sender to the receiver. This Bill will give us the power to fight back.

It will suffer from some limitations. Spam is a global issue, the Bill only has power to act against spammers with an Australian link.

There is also a real risk of uninformed business owners sending email which they believe is legitimate and falling foul of major financial penalties!

Importantly, if you outsource the delivery of your client emails, you are liable, rather than your provider, if they do not satisfy all of the provisions of the Act to ensure your client email is classified as commercial email rather than spam! Thus, you should talk to us when making a list outsourcing decision. Our standards for client email list management satisfy or exceed those of the Act and you would be confident as our client of not falling foul of this legislation when it comes into effect.

Here is the simplified version of the proposed legislation:

This Act sets up a scheme for regulating commercial e-mail and other types of commercial electronic messages.

Unsolicited commercial electronic messages must not be sent.

Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message.

Commercial electronic messages must contain a functional unsubscribe facility.

Address-harvesting software must not be supplied, acquired or used.

An electronic address list produced using address-harvesting software must not be supplied, acquired or used.

The main remedies for breaches of this Act are civil penalties and injunctions.

Whilst the Bill is extensive, there are a couple of points worth visiting in detail. The first is the concept of consent, or when is it OK to send an electronic message to someone?

For the purposes of this Act, consent means:

(a) express consent; or

(b) consent that can reasonably be inferred from:

(i) the conduct; and

(ii) the business and other relationships of the individual or organisation concerned.

"For the purposes of this Act, the consent of the relevant electronic account-holder may not be inferred from the mere fact that the relevant electronic address has been published."

In other words, just because you see an email address for someone this does not necessarily mean you can send them a commercial email.

Importantly, there is no mention of bulk messages. In theory, it only takes one message to infringe this legislation. Penalties for infringement are up to $220,000 for corporations and $44,000 for individuals for a first offence (where more than one message is involved)!

If you have any questions about possible effects of this legislation on your client communications strategy or are wondering if your current provider of list management services is up to the rigorous standard we set here at Raycon then please get in touch with me.

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