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Spam-six years on

Our Spam Act ('Act') came into effect on 10 April 2004.

Under section 16, it has opt in provisions whereby consent must be obtained before sending a unsolicited commercial electronic message.

Consent can be given expressly or it can be reasonably inferred from the conduct of the recipient, or the business or other relationships of the recipient of the message. Consent is not inferred from the recipient merely publicising its email address. Guidelines on inferring consent are contained in Schedule 2 of the Act and further guidance has been given by the Federal Court in Australian Communications and Media Authority-v-Clarity1 Pty Ltd [2006] FCA 410.

The Act is working well. Since 2007, Australia has dropped from 10th to 37th on the list of spam creating nations - see www.acma.gov.au but unfortunately the USA with its opt-out model (opposite to Australia's opt-in model) continues to be number 1 on the list.

Spam has effectively been legalised by the opt-out provisions of the USA Can-Spam Act and as contemplated when our legislation was passed, domestic legislation is insufficient to eliminate spam or even reduce it to an acceptable level. It is clear that international law enforcement co-operation efforts cannot solve the conflicting obligations in the cross jurisdictional problem and legislative support must be given to support world-wide legislative harmonisation and effective technological solutions.

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