Professional Documents
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large mailing lists through a 3rd party provider, and wether he as an individual is liable for any
liability under Australian law. Firstly, under Australian law, SPAM is a term used on the Internet to
refer to unsolicited e-mail and Usenet postings1. These messages are usually intended to entice the
recipient into buying a product or service of some kind or into participating in a get-rich-quick
scheme. SPAM is a world-wide problem as it brings upon a great cost to governments and
organizations around the world and has also been attributed with clogging and slowing down the
internet2. Therefore it comes as no surprise that many countries around the world have drawn up
legislations making it illegal (tougher) to send unsolisited email over the internet. However, even
with the adoption of new laws to combat SPAM, it is difficult if not impossible to regulate a lot of
the SPAM we find here in Australia for the simple reason that the internet is borderless, and
In Australia, the legislation that deals with SPAM is the Commonwealth SPAM Act 2003. The main
purpose of this act is to regulate unsolicited commercial e-mail within Australia. According to
section 16(1) of the act, a person must not send, or cause to be sent a commercial message that has
an australian link or is not a designated electronic commercial message. In John's case, the liability
under this section would be limited due to the fact that John was not the actual party which was
responsible for the SPAM. He contracted Internet Impact Advertising (IIA), which was supposed to
help increase revenue through exposure on the internet. John could argue under section 16(3)(b),
that he did not have reasonable information that IIA were spamming as they were vague about their
promotion strategies. However, he still bears the burden of proof in court, section 16(5). Secondly,
in the act, section 18(c) stipulates that all commercial electronic messages must have an opt-out
facility whereby the receipient can easily unsubscribe from this facility. In John's case, many of the
1http://www.brightmail.com/spamstats.html> at 12 september 2008. Brightmail defines spam as
unsolicited bulk email.
2
receipients of the SPAM emailed him back telling him to stop sending SPAM. This to me, indicates
a missing opt-out function or link where the receipent can choose to stop getting those messages.
This in essence is what differentiates SPAM from regular commercial emails. Lastly, John's main
form of liability would arise within the address-harvesting nature that IIA obtained its email mailing
lists. To start, this would be a contravention of section 22(3)(a) which disallows a person from
aiding and abetting in the use of harvested-address lists for purposes of SPAM. Also, the
Commonwealth Privacy Act 1988 stipulates a set of principles known as the National Privacy
Principles (NPP), NPP1 deals with collection of information while NPP2 deals with use and
disclosure. John needs to be wary as section 6A of the act deals with breaches of a national privacy
principle and he may be found liable for that if an individual takes a case against him or complains
There is also a notion by some that SPAM results in another form of breach, that is using the tort of
trespass, there can be an implied 'trespass to goods'. Basically, it can be argued that through the
process of sending unsolicited email in bulk, there can and will be a diminished level of
performance (regardless how small) while using the internet. This argument was first brought up in
obatining legal remedy in Australian courts, there is still the possibility that it may be used for
Furthermore, a great weakness that the Australian legislation has when it comes to combating
SPAM is the opt-in feature versus the opt-out approach adopted in the US. If taken at face-value,
the former strategy would be more effective than the latter, however, in reality, most of Australia's
SPAM originates from North America. This jurisdiction issue over the internet, is one of the main
loop-holes that impede the process of eradicating SPAM as it is sometimes confusing as to the
origin of the email or its destination for that matter.
Due to the recent enactment of the Spam act 2003, there are not many cases which refer to the
SPAM Act in particular. However, there are cases of Spammers in Australia that have been
prosecuted in courts using other laws such as the Corporations Act, Trade Practices Act 1974 and
also the Privacy Act. One such case is that of R v Hourmouzis. The defendant was charged with
sending out a large number of unsolicited emails to a list of email addresses around the world with
the intention of inducing purchase of some US stock. The defendant pleaded guilty and was charged
All in all, the SPAM act is an essential tool in combating Australian-originated SPAM, but it is still
imperfect and should be revised as further case law builds on the act. In the case of John, it seems
that he has some issues to address in respect to his liability under the SPAM act; In particular, to the
people in which have been airing their grievinces to him and still keep receiving the unwanted
emails. A possible solution would be to cease using e-mail marketing and switch to another form of
internet advertising, alternatively, as a remedy John may want to offer an apology to those most
affected by the spamming. To obtain information in regards to this matter, the most useful sources
of information was google, for good general information and secondary sources. AUSTLII for
legislation and case material (Primary) as well as Lexis Nexis and AGIS for their journal articles.
The main forms of searches used were Boolean searches that were truncated(*) along with a few
operators such as AND, OR, w/n (within). Most searches were quite easy to structure but produced
Boyarski, Jason R, Fishman, Renee M, Josephberg, Kara et al, 'European authorities consider
cookies and spam' (2002) 14(3) Intellectual Property & Technology Law Journal 31
this article looks at the international stance the worls takes on SPAM and legislative measures that
were implemented to first combat the growing problem.It is relevant to reseacrch because it
Geraci, Danna, 'Spam: opt in if you like' (2001) 34(2) Law-Technology 18.
this article discusses the notion of öpt-in”and does a comparison with opt-out. Both notions are
methods used in Australia and the US. It is relevant because it provides a better understanding as
Hahn, Robert W and Layne-Farrar, Anne, 'The benefits and costs of online privacy legislation'
Within this article, the author discuses the freedoms and privacy concerns affected while using the
internet – SPAM is a big concern. The article goes to show how important it is for countries to have
some sort of guidelin or ettiquite if it does not have proper legislation already.
Loomis, Tamara, 'Junk e-mail: filing suit against a spammer is a way to fight back' (2002) 227(69)
The author here brings upon an argument on how effectively one can bring and action against a