Landmark spam case begins in the federal court

A landmark court case, which alleges a Perth-based company has breached the Spam Act 2003 and is sending unsolicited e-mail across the globe, began in Perth yesterday.

Initiated by the Australian Communications and Media Authority (ACMA), the matter is being heard in the federal court against Clarity1 Pty Ltd and its sole director Wayne Robert Mansfield.

Clarity1, which also trades as Business Seminars Australia and Maverick Partnership, is accused of sending at least 56 million unsolicited commercial e-mails in the 12 months after the legislation came into force in April 2004.

Justice Robert Nicholson issued an interim injunction last August ordering Clarity1 not to send out unsolicited e-mail in breach of the act pending resolution of the case.

But Stephen Owen-Conway, QC, began ACMA's opening address in Perth by telling the court that Clarity1 is continuing to breach the Act. "It is alleged the company is continuing to send unsolicited messages," Owen-Conway said.

The case revolves around whether Clarity1 had prior consent of recipients before sending the e-mails, the QC said.

Mansfield is arguing consent was involved because recipients of his e-mails did not unsubscribe and the addresses from which he sent e-mails were traceable.

However, Owen-Conway said Clarity1 disguised the origin of e-mails, placing fictional names in the "From" section of the e-mails.

He said Clarity1 also used e-mail addresses harvested by special-purpose software and used a network of six remote servers.

He told the court Mansfield's databases contained 11.8 million electronic addresses.

The Spam Act does not allow addresses from harvested software to be used.

The company faces fines up to $1.1 million a day if found guilty.

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Linda Machin

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