Australian Law, Address-Harvesting Software - Math Problem Example

Introduction to Australian Law Introduction: The case in question is that of Sam, a professional spammer who tried to earn money the easy way. The following is an analysis of the Australian Spam Act (2003) and the manner in which Sam under the duress of the act now comes under penalty jurisdiction for the acts that he has committed. Summary: The Spam Act could be summarized as stating that unsolicited commercial electronic messages must not be sent. Messages should only be sent to an address when it is known that the person responsible for that address has consented to receive it. Electronic messaging” covers emails, instant messaging, SMS, and other mobile phone messaging like multi media messaging, but does not cover normal voice-to-voice communication by telephone (Spam Act, 2003) In the context of te present case therefore the act finds relevance given that fact that the problem here is of unsolicited e-mails. The Australian Spam Act (2003) defines a commercial electronic message as, “an electronic message, where, having regard to: 1. the content of the message; and 2. the way in which the message is presented; and 3. the content that can be located using the links, telephone numbers or contact information (if any) set out in the message; Harvested Address Book There are a number of counts where Sam can be held responsible for the violation of the Spam Act. The first point is that he used a harvested address book when he obtained and applied the software that would give him access to all of the university website visitor’s e-mail ids. The act is clear in this regard, and states in Section 19 that, Address-harvesting software and harvested-address lists must not be supplied. It further states that the supplier must take care not to tender the address harvesting software or the right to the usage of a software of this kind. This prohibition of harvested software and correlating address book extension is also inclusive of a harvested-address list and the right to use such a list. The condition governing this prohibition further states that a person is not allowed to supply such a software or a list to a consumer if the one offering the list is an individual who is physically present in Australia at the time of the supply or offer a body corporate or partnership that carries on business or activities in Australia at the time of the supply. This also applies in case the customer in question is a person present in Australia, the time of the supply or offer; or a body corporate or partnership that carries on business or activities in Australia at the time of the supply or offer. By this definition then, Sam is guilty of flouting the rule of getting access to a harvested address book and then trying to disseminate information to the people present in Australia. Although the Section is concerned mainly supply and transactions related to the address book, the usage of the address book for commercial purposes is also prohibited. Sam, used the address book to send out unsolicited e-mails. He therefore made use of the contacts and ids to which he had no right of access. Acquisition of address harvesting software Section 21 of the Act states that Address-harvesting software and harvested-address lists must not be acquired. Sam is guilty here is well given the fact that he made a conscious choice to get access to a software that would help him in the creating of an harvested address book for the use of commercial purposes. Use of the address harvesting- Section 22 specifies that Address-harvesting software and harvested-address lists must not be used. Sam is guilty of using the address book that he harvested using a software that he was not supposed to have access to in the first place. The precedent here is the judgment in the Mansfield case where the company Clarity1 and its head Mansfield were found to be in violation of the Spam Act because they sent out in excess of 213 million unsolicited commercial electronic messages advertising the business [Australian Communications and Media Authority v Clarity 1 Pty Ltd, [2006] FCA 1399)]. They operated under the trading names of Business Seminars Australia and Maverick Partnership. Investigation of Justice Nicholson found that both Clarity1 and Mansfield were in breach of the Spam Act for both sending unsolicited commercial electronic messages, and for using harvested address lists (Spam Act Case Studies). This defence was dismissed by the court, which found that the ‘silence’ or non-response of the email recipients did not provide a basis for consent under the Spam Act. On 27 October 2006 Justice Nicholson awarded a financial penalty of $4.5 million against Clarity1 Pty Ltd and $1 million against its managing director, Wayne Mansfield. It is necessary that the information being sent in the electronic message be accurate and not false of misleading. To this extent, Section 17 of the Spam Act states that Commercial electronic messages must include accurate sender information. This means in essence that a person must not send, or cause to be sent, a commercial electronic message that has an Australian link unless the message clearly and accurately identifies the individual or organization who authorized the sending of the message; and the message includes accurate information about how the recipient can readily contact that individual or organization and that information complies with the condition or conditions (if any) specified in the regulations; and that information is reasonably likely to be valid for at least 30 days after the message is sent. By this definition then Sam is guilty once again flouting the rules of the Spam Act given the fcat that the information about him providing respondents with a toolkit and a gift are false since he has no intention of ever sending them a gift. He has also provided false information given the fact that he has stated that his business has received approval from the Australian Securities and Investment Commission while in fact no such affirmation has been given to him or his venture. Penalties: The first steps that could be taken against Sam would be mostly adversarial and consultative in nature as they would seek to put a stop to his venture. These would therefore take the shape of educational contact in the form of warning letters and advisory mails. This would seek to give him the benefit of doubt regarding whether or not he intentionally used an address harvesting software in ignorance. The latter part of his offence would however bring him in direct criminal contact with the provisions of the Act. He has knowingly flouted the rule when he decided to send information that was related not accurate and sought to deliberately mislead consumers. There are a number of steps that could be taken against Sam under the duress of the Spam Act, these could take the shape of formal warnings and educational contact, enforceable undertakings, fines and an ultimate prosecution in a Federal Court. Section 24 of the Spam Act states that If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate. The penalty imposed could be ranging from 200 points to 400 points of pecuniary units. Section 26 further states that for the purpose of recovery of pecuniary units the ACMA may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 24. The guiding force behind the judgment in this particular case could draw heavily from the judgment in [Australian Communications and Media Authority v Clarity 1 Pty Ltd, [2006] FCA 1399)]. The ACA may choose to issue infringement notices for contraventions of the legislation, instead of initiating a full court proceeding. A person who receives an infringement notice may refuse to pay, but could then be subject to a court action, where, if the contravention was proven, they could be penalized at a higher rate than the infringement notice (Matthews, 2005). Further subsections of the Act provide that the ACA has the authority to start a court injunction with respect to the contravention of Spam Act by the defaulter. Given the fact that in Sam’s case there is ample proof to show that he stands in direct confrontation with the rules of the Act, the court has the authority to impose a strict fine on the convener. The penalty can be in keeping with the degree to which Sam has been successful in getting recruits to his scheme. Additionally, he may also be required to give up all of the financial benefits that he gained in the course of the contravening activity. Any person who has suffered loss or damages from someone else contravening the Spam Act, or the ACA on their behalf, may apply to the court to make an order for compensation. Reference: Australian Spam Act, 2003 Matthews B, 2005, Anti-Spam Team Case Studies, International Training program, accessed August 26, 2009, < http://www.authorstream.com/Presentation/Jancis-65276-spam-case-study-bruce-matthews-Anti-Team-Studies-International-Training-ProgramBruce-stud-Science-Technology-ppt-powerpoint/> Spam Act, 2003, A Practical Guide for Business, pub, ACMA, accessed August 26, 2009, < http://www.acma.gov.au/webwr/consumer_info/frequently_asked_questions/spam_business_practical_guide.pdf> ACMA, Anti Spam Case Studies, accessed August 26, 2009, < http://www.acma.gov.au/WEB/STANDARD..PC/pc=PC_310315> Read More