Spam is expected to account for approximately 40% of all Internet email delivered this year, contributing about US$2-3 of the average consumer's monthly Internet bill. The law, despite having a long (and undistinguished) history with spam, has been caught short in its response to this unexpected and unwelcome phenomenon. As a preliminary matter, it is necessary to define what constitutes spam. CAUBE-AU (the Coalition Against Unsolicited Bulk Email, Australia) defines spam very broadly as any electronic mail message that is:
a. transmitted to a large number of recipients; and
b. not explicitly and knowingly requested by some or all of those recipients.6
Despite the use in its title the Spam Act 2003 (Cth) (the Act), the term 'spam' is not defined. Instead the Act regulates 'unsolicited commercial electronic messages'.
Spam Act 2003 (Cth)
As set out in the second reading speech, the key features of the Spam Act 2003 (Cth) (the Act) include:
a consent-based or "opt-in" basis for commercial electronic messaging
a recognition of existing customer-based relations
a restricted, and appropriate, recognition of implied consent, where people advertise their electronic address
a requirement for accurate sender's details and a functional unsubscribe facility
a support for the development of complementary industry codes
a flexible and scalable civil sanctions regime for breaches.
The Act will ban the supply, acquisition and use of addresses harvesting and address list generation software for the purpose of sending spam, as well as the list produced against using the software.
Courts will also be able to compensate businesses which have suffered at a spammer's hands, and the courts will be able to recover the financial gains made from spammers.
Main Effect of Legislation
In summary, the Act regulates:
the sending of certain commercial electronic messages with an Australian link; and
the dissemination and use of...