Australia set to hit unscrupulous spammers

The Australian parliament is taking a "markedly different" and "more restrictive approach" towards regulating unsolicited commercial email (spam) than its US counterpart, according to a technology lawyer.

With both parliaments on the verge of passing federal laws controlling spam, Gilbert and Tobin’s senior partner, Peter Leonard, said Australia’s Spam Bill 2003, which passed through the House of Representatives in October and is now in the Senate, was “more restrictive than the US legislation” in two key areas: consent - the Australian opt-in permission structure versus the American opt-out, and fines and penalties.

The Australian Spam Bill 2003, along with the Spam (Consequential Amendments) Bill 2003, was originally introduced on September 18. In the US, anti-spam legislation had existed on a state-by-state basis since 1999, Leonard said. Now the US government wanted to introduce the legislation —dubbed Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act - at the federal level.

The US national spam bill – which promulgates fines of up to $US6 million or five-year jail terms for some spammers - has been approved by both the House of Representatives and the Senate. The two bills need to be merged into joint legislation before it is presented to US president, George Bush, for his approval.

In Australia, the government’s anti-spamming strategy –which sets penalties of up to $1.1 million per day for corporations (with a prior record) and $220 for individuals (with a record) for sending spam - proposes an opt-in regime for commercial electronic messaging based on the principle of consent, and a requirement for accurate sender information and an unsubscribe facility where appropriate.

It also seeks a ban on electronic address harvesting tools and their use for the purposes of spamming and harvested address lists, support for the development of appropriate industry codes, and a flexible civil sanctions regime including warnings, infringement notices and court awarded penalties.

By contrast, the US legislation proposed an opt-out approach, which meant people could send email so long as an opt-out option was capable of being exercised," Leonard said. They also had to ensure their servers could cope with the volume of opt-out replies rolling in.

In Australia, the opt-out approach was rejected, he said. That indicated the law required stricter consent/permission procedures.

“It’s much more limited than the US,” he said.

This took the onus off the consumer to respond – or opt-out - and confirm they existed.

“Unscrupulous marketers like the opt-out approach because it validates your email address,” Leonard said.

It left the door open for the potential sale of lists, he said.

Another reason why Australia was nixing the opt-out approach was it requiresdtoo much effort on the part of the user to deal with unsolicited email.

For a detailed analysus of Australian and US anti-spam legislation, see this week's issue of ARN.

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Jennifer O'Brien
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