Compliance Guide to SPAM ACT 2003 - for legal practitioners
Table of contents
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Introduction 1- COVERAGE Entities to which Act applies “Electronic message” Does not include a “voice call” “Account” “Electronic address” “Internet carriage service” “Listed carriage service” “Carriage service” “Message” “Commercial electronic messages” Must be for specified commercial purpose Purpose determined based on content, presentation & links Examples of commercial messages Examples of non-commercial messages “Business” and “investment” opportunities Partnerships Commencement
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PROHIBITION ON SENDING Prohibition “Send” “Australian link” “Authorising” the sending of electronic messages Exemptions 1. “Designated commercial electronic message” i) Contains factual information ii) Government bodies, political parties, religious organisations & charities “Government body” “Charity” & “charitable institution” “Religious organisation” “Registered political party” iii) Educational institutions iv) Specified by regulations 2. Consent Meaning of “consent” Express consent Inferred consent Third party using account deemed to be authorised Inferring consent from conspicuous publication Withdrawal of consent 3. Unaware of Australian link 4. Mistake Compliance guide STEP 1 - Review types of commercial messages sent Checklist - Identifying exempt & non-exempt messages STEP 2 - Establish procedures for sending exempt messages STEP 3 - Establish procedures for sending non-exempt messages Amending customer databases & lists Procedures Precedent - procedures for ensuring messages sent with consent Restrict who may authorise messages STEP 4 - Obtain consent Express consent Consent requests Precedent – consent request Application forms & contractual clauses Precedent – Opt-in & opt-out policies Inferred consent Precedent - procedures to indicate consent inferred Consent provided or obtained by third party Relying on consent obtained by third party Relying on assumption that third party is authorised Ensuring consent not provided by unauthorised third party Relying on conspicuous publication exemption Precedent - procedures for collecting addresses STEP 5 - Establish procedures for honouring consent withdrawal Procedures to determine when consent withdrawn 5 day withdrawal period Acknowledge receipt of withdrawal request Regular reviews to verify withdrawal honoured Keep original request for evidential purposes
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PROHIBITION ON SENDING MESSAGES Prohibition “Reason to believe” Exemptions Designated commercial electronic message Unaware of Australian link Compliance guide STEP 1 - Determine whether send to non-existent addresses STEP 2 - Establish procedures for sending to non-existent addresses Identify exempt messages Checklist - Identifying exempt & non-exempt messages Alter databases & mailing lists Procedures for sending messages STEP 3 – Establish procedures to prevent sending to non-existent addresses Precedent - procedures for ensuring addresses correct
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REQUIREMENT TO INCLUDE Information to be included Exemptions Unaware of Australian link Mistake Compliance guide STEP 1 - Identify messages to which requirement applies STEP 2 - Amend templates Emails & online documents SMSs, IMSs & MMSs STEP 3 - Miscellaneous issues Ensure sender information related to authoriser & not sender Ensure details accurate for 30 days
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REQUIREMENT TO INCLUDE Elements to be included in unsubscribe facilities Exemptions “Designated commercial electronic message” Unaware of Australian link Inconsistent with contract or agreement Mistake Compliance guide STEP 1 - Identify messages to which obligation applies Checklist - Identifying exempt & non-exempt messages STEP 2 - Amend templates Emails & online documents “Reply to message” facility Precedent - “Reply to message” facility “Email hyperlink” facility “On-line” facility Precedent - On-line facility SMSs, IMSs & MMSs STEP 3 – Miscellaneous issues Ensure messages sent to authoriser & not sender Ensure messages sent by individual business units Contracting-out of unsubscribe facility Good practice for exempt organisations to include facility Allocate sufficient resources to monitor facility Ensure facility functional for 30 days
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ADDRESS-HARVESTING SOFTWARE Introduction Key definitions “Address‑harvesting software” “Harvested‑address list” Prohibition on supply of software and lists Exemptions No reason to suspect use for contravention Unaware that customer in Australia Compliance guide (supply) STEP 1 - Ensuring “no reason to suspect contravention” Maintain blacklist of spammers Request customer I.D. Precedent procedures Review orders placed before 10 April 2004 STEP 2 - Ensuring customer “not in Australia” Request customer I.D. Contractual warranties & indemnities Precedent procedures Precedent - Procedures for sale of software & lists Precedent - Contractual warranty Prohibition on acquiring software or lists Exemption – not intended for use in contravention of Act Compliance Guide STEP 1 - Ensuring future acquisitions comply with Act STEP 2 - Placing blanket ban on acquiring software or lists Obtain warranty, indemnity or undertaking from supplier Prohibition on using software and lists Exemption – use not in connection with contravention of Act Compliance guide STEP 1 - Review types of software & lists used STEP 2 - Decide if will use software or lists in future STEP 3 - Develop compliance procedures Ceasing use of software & lists Continuing use of software & lists Ensuring current lists may be used
7 - GENERAL COMPLIANCE ISSUES Introduction Reviewing messages, software & lists Reviewing types of commercial electronic messages sent Step-by-step guide STEP 1 - Identify categories of electronic messages sent STEP 2 - Identify messages sent within each category STEP 3 - Identify “commercial” messages Method of conducting review Checklist – identifying commercial electronic messages Reviewing types of software & lists used Precedent - questionnaire on software & lists Out-sourcing Protecting against losses due to breach by contractor Must include information about out-sourcing party Unsubscribe facilities must send messages to out-sourcer Contractor’s exempt status does not apply to out-sourcer Out-sourcer’s exempt status applies to contractor Government bodies, political parties, religious organisations, charities & educational institutions Must develop compliance programs despite exemptions Message may relate to goods or services unrelated to entity’s main objects Cannot promote goods or services supplied by third party Exempt entities pursuing best practices may opt-in Exempt religious organisations & sensitive information Factual information exemption Sponsorship revenues No limit on amount of space “additional information” may occupy Removing logos & slogans from e-templates Staff training Preventing published addresses being used for spam Relying on absence of Australian link Exercising “reasonable diligence” Complaint handling procedures ISPs may impose higher standards Related regulatory & compliance regimes Issues arising under Privacy Act 1988 (Cth) Ensure compliance with foreign laws Restricting messages sent when off-premises
8 – ENFORCEMENT Introduction Federal Court may order civil pecuniary penalties ACA may institute proceedings ACA or victim may seek compensation ACA may seek recovery of financial benefit ACA may seek injunctions ACA may accept enforceable undertakings ACA may issue formal warnings ACA may issue infringement notices Penalties
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