The Federal Court ordered Clarity1 Pty Ltd to pay up $4.5 million and for its Managing Director to cough up $1 million of his own money for sending unsolicited emails and using harvested address lists.
The Australian Communications and Media Authority's (ACMA) prosecution of Clarity1 is the first prosecution under the relatively new act.
Between April 2004 and April 2006 Clarity1 sent about 280 million spam emails, of which about 74 million were successfully delivered. We know about it only too well at Internetrix - after being inundated, we were one of the early companies to lodge an official complaint.
While what actually counts as spam, the electronic version of junk mail, differs greatly depending on where you are, here in Australia our anti-spam legislation defines spam as 'unsolicited commercial electronic messages'.
The Spam Act legislates that it is against the law to send unsolicited commercial emails that have an Australian link. This means that any spammers sending messages originating in Australia, commissioned in Australia, or even originating overseas but being sent to an address accessed in Australia can be held liable. Even SMS messages are covered under the act. Unfortunately, faxes aren't covered - considering the number of dodgy offers we get here, that's a real shame.
Those caught infringing the Spam Act can expect penalties as steep as $1.1 million dollars per day. Eek...
This might sounds a little steep for just emailing people, but there's rationale to it all.
ACMA Chairman Chris Chapman claims spam causes significant disruptions to businesses and individuals by reducing email delivery, clogging computer systems, wastes time and irritates users. Our Managing Director, Geoff, gets around 10,000 spam messages per month to his account alone.
According to Justice Nicholson, the judge trying the case against Clarity1, it's impossible to calculate the amount of loss or damaged caused by such emails. While he stated that spam poses a "threat to the functionality of the internet", he also mentioned financial costs associated with having to purchase blocking and filtering software, as well as other costs resulting from lost productivity and time. Having just invested in a new server just to handle email and spam loads, we here at Internetrix surely appreciate the financial cost these con artists put on our business.
The judgment comes as a strong warning to other Aussie spammers using techniques falling within the Spam Act to be careful, as substantial penalties have begun to be awarded against both individuals and organisations. With changes in the 'Do Not Call' register coming into force early in 2007, the importance of using email communications and newsletters properly - especially offering a legitimate "unsubscribe" feature in all dispatches - continues to build.
While Australia continues to fight spam, and you continue to want to send your clients update emails detailing what's going on at your firm, there are a couple of things to keep in mind to keep you out of the murky spamming waters.
If you're concerned that your electronic newsletters sent to clients might be considered spam, simply consider the following conditions to ensure your messages comply with Australian anti-spam laws:
- Consent: Messages must be sent with the recipients consent.
- Identify: Messages must contain accurate information about the people or organisations sending the email.
- Unsubscribe: Messages must contain a functional unsubscribe facility to let recipients easily opt out from receiving future messages.
While Australia fights this battle by imposing heavy fines on nasty spammers, no single country can completely halt spamming. It's a global problem that requires coordinated global action. And according to the ACMA, about 99 percent of spam that reaches out inboxes is from overseas.
So now that some Aussie spammers are in the financial slammer, don't get too excited about a spam-free inbox. That day is a long way off...