The Situation in Australia
Background
While the Australian contribution to the spam problem has always been small in absolute terms, Australia has had a reputation at various times for producing far more spam than you would expect given our relatively small population. In 1999-2000, CAUBE.AU conducted a spam survey to measure that contribution. For the survey, we deliberately exposed special email addreses in places where spammers would find them. We were surprised to find that in this survey, Australia accounted for approximately 16% of all spam received, while Australian users of the Internet accounted for approximately 2.6% of Internet users around the world. For the United States to be producing an equal relative volume of spam at that time, it would have had to produce 250% of the world's spam.
The situation improved somewhat since then, although some of this improvement may be due to spammers using techniques to make it harder to identify where their spam comes from. Still, as at mid 2002, the volume of spam produced by Australia was still at least twice as high as it should have been given Australia’s contribution to global Internet use.
The Regulatory Framework
In Australia there are now two Acts of Parliament, one set of self-regulatory guidelines, and several industry codes covering spam:
The Spam Act 2003 (Cth) bans most commercial spam, with penalties of up to $1.1million applying for breaches of that Act as of April 10th 2004. For more information on this Act, click here.
The Privacy Act 1988 (Cth) generally requires organisations collecting electronic mail addresses to seek permission from the address holder in order to use the address for direct marketing purposes.
The Government’s electronic commerce guidelines for business, “Building Consumer Sovereignty in Electronic Commerce (A Best Practice Model for Business)”, provides additional guidelines to be used by businesses and organisations developing industry codes. These guidelines will evolve over time to reflect the current “best practices”, and are designed to promote practices that increase consumer confidence in online transactions.
Industry codes, including those of the Internet Industry Association and the Australian Direct Marketing Association, also provide rules relevant to marketing by electronic mail.
There are also other laws that cover practices that spammers use. For example, many spammers routinely breach the Trade Practices Act 1974 (Cth), by making false or misleading claims, or by falsifying information in the spam to avoid their messages being blocked by spam filters. Spammers also routinely violate criminal laws.
In November 2000, Australia secured its first criminal conviction related to spamming - a stock touting spammer was convicted on two charges, including one charge the Crimes Act 1914 (Cth) s76E (This section has since been modified and moved to another Act), and sentenced to a term of imprisonment. The section imposed a maximum penalty of 10 years imprisonment, and made it an offence to interfere with, interrupt or obstruct the lawful use of, a computer by means of a carrier (telephone line or ISP) or facility provided by the Commonwealth. The behaviour that led to this particular charge was that the offender relayed his spam off the affected third party computer systems. Thus in Australia, relay spam is a criminal offence.
Additionally, spam that is not covered by these statutes, industry codes, and other laws relating to the conduct of spammers, may be illegal under the Common Law (Rollo T, "Liability for spam through trespass to goods" (2001) 8 PLPR 77). This has been successfully tested in at least some situations in the United States, although the exact bounds of the common law rules are yet to be defined.