The Spam Act 2003 in Australian Law - Coursework Example

Name Course Tutor Date Introduction to Australian law Introduction Spam refers to the sending of unsolicited commercial electronic messages and this consists of e-mail, instant messaging and SMS as well. To help hold back the increasing trend of spam, the Australian Communications Authority (ACA) came up with, The Spam Act 2003, which regulates and protects the public against spam. This legislation prohibits and makes it illegal to have unsolicited commercial electronic messages which have Australian link, supplying or using the address-harvesting software and also harvesting of e-mail lists in order to send spam messages. This step was taken in order to curb spam through the internet allover. Spam Act 2003, also entails that each and every electronic message should include correct sender information as well as functionality “unsubscribe” facility. This is what has facilitated the effective protection Australian public against spam (Parkinson 12-24). Spam Act sets up a system for the regulation of commercial e-mail and other kinds of commercial regulating messages whereby it deems that the commercial electronic messages that are not solicited ought not to be sent. Each and every electronic messages should include information regarding the individual or the organization that approved the message to be sent. This act also supposes that the commercial electronic messages should have a functional unsubscribe facility and the software for harvesting the address should not be supplied, acquired or utilized and an electronic address list that is producing through the use of address-harvesting software should not be supplied, acquired or used (Vines 45). Incase the Spam Act is breached; the key remedies include civil penalties and injunctions. In the Spam Act, an account consists of a free account, a pre-paid account and also anything that can be considerably be referred to as the correspondent of an account. ACMA stands for Australian Communications and Media Authority and acquire if used to refer to the goods or services has a similar as in the Trade Practices Act 1974. On the other hand, address-harvesting software stands for software that is exclusively intended or marketed to be used in: searching the Internet for electronic addresses and gathering, compilation, capturing as well as harvesting the electronic addresses. Agency is inclusive of armed force and police force. Australia when employed in geographical perspective consists of the external Territories and Australian link has the meaning in section 7 and authorize when used in connection to the conveying of an electronic message has the meaning influenced by section 8. Business also consists of an undertaking or concern within trade or commerce irrespective if it is carried out on a standard, cyclical or incessant basis whereas carriage service means the same as within the Telecommunications Act 1997 and the civil penalty can be represented by the following: (a) Subsections 16(1), (6) and (9) (b) Subsections 17(1) and (5) (c) Subsections 18(1) and (6) (d) Subsections 20(1) and (5) (e) Subsections 21(1) and (3) (f) Subsections 22(1) and (3) (g) A term of the regulations that is declared to be a civil penalty provision according to paragraph 45(2) (c) (Booker 35-42) Commercial electronic message has the meaning provided by section 6 while consent when utilized in connection to the conveying of electronic message has the meaning provided by Schedule 2. Data processing device has the same meaning as in Telecommunications Act 1997. Moreover, dealing with when used in connection to the commercial electronic message consists of accessing the messages, replying to the message and sorting out the message. Director refers to a member of a central body of an organization and educational institution refers to a pre-school, a school or a college/university. Electronic message has the meaning offered by section 5 and an employee consists of a person who is serving an armed force, a police force or a religious institute. Evidential burden in regard to an issue refers to the burden of adducing or spotting to the evidence that implies a considerable likelihood that the issue is in existence or not. Federal Court refers to Federal Court of Australia and goods have the meaning in Trade Practices Act 1974. Government body refers to: (a) A department of the Commonwealth, a Nation or a Territory or (b) An organization, influence or instrumentality of the Commonwealth, a State or a Territory; or (c) A section of the government of a distant country. (d) A group, influence or instrumentality of the government of a section of a foreign country. Harvested-address list refers to a record of electronic messages or an assortment of electronic addresses or an assemblage of electronic addresses; the generation of the list, assortment or assemblage is attributed to the utilization of address harvesting software. International convection refers to a convection whereby Australia is a party or an accord between Australia and a foreign country. Still, internet carriage service refers to a listed carriage service that permits the end-users to have an access to the internet (Booker 75). Investment refers to any means of relevance of money or other property for the reason of getting a return either in terms of income, capital gain or any other form of return. Logo refers to a trade mark and a message refers to information either in text form, data form, speech, music, any sound form, visual images form or whether it is in combination of the forms. Mistake means a considerable mistake of information and organization consists of a business body, joint venture, legislative body, court or tribunal or an unincorporated body or alliance. Relevant account holder in regard to sending the electronic messages to an electric address, means: In case the electronic message happens to be an e-mail address, the person or organization that is responsible for the applicable e-mail account or in case the message is sent to an electronic address when connected to an instant messaging service, the person or organization responsible for the related immediate messaging account or in case the electronic address is a telephone number, the person or organization who is responsible for the relevant telephone account or in any other scenario, the person or the organization that has the responsibility for the applicable account (MacAdam & Pyke 123). In regard to the Spam Act, electronic message refers to any electronic message that is sent through an Internet carriage service or any other listed carriage service and also an electronic message that is sent to an electronic address using an e-mail account, instant messaging account or similar account. Commercial electronic messages refers to an electric message whereby in relation to the message content, the manner in which the message is presented and the content can be located through the use of links, telephone numbers or the contact information within the message. The key function of the message include; offering to supply either goods or the service, advertisement or promotion of goods and services, advertisement or promotion of a supplier or a probable supplier of goods and services as well, offering to supply land or an interest land or advertising or promoting land or an interest land, advertisement or promotion of a supplier or a prospective supplier of land or an interest in land or to tender to avail a business/venture opportunity, advertisement or promotion of a provider, or a prospective provider of a business opportunity or investment opportunity or to help an individual through trickery to fraudulently gain property that belongs to someone else or to help an individual through trickery to fraudulently gain financially from someone else (Cook et al 54). According Spam Act, an electronic message that has an Australian link is the one that the origin of the message in Australia, the person or organization who sent the message or endorsed the message to be sent is physically present within the Australia while sending the message or organization with the key management and control is within Australia while the message was being sent. Again, an electronic message has an Australian link if the computer, server, appliance that is used when accessing the message is situated within Australia, the applicable account holder is physically present within Australia during the access of the message or an organization that has a business within Australia when the message is accessed. Or even if the message cannot be delivered due to the applicable electronic address is not in existence (Booker 32). The Spam Act, in regard to authorization of electronic messages to organizations presumes that if a person authorizes an electronic message and the person does this on behalf of an organization, then the organization is the one that authorized the message sending and the person is regarded not to have authorized the sending of the message. Self authorization occurs if an electronic message is sent by a person or organization and the message sent was not authorized by any other person or organization. Still, Spam Act is against someone sending an electronic message or generates the sending of a message just because an individual offers a carriage that allows the sending of the message and this is important to eliminate any doubt (Booker 89-92). Rules regarding sending of electronic messages Any commercial message that is not solicited should not be sent and commercial messages should always consist of information concerning the person or the organization that sanctioned the message to be sent. Moreover, commercial electronic messages should not have a functional unsubscribe ability. This means that no one is allowed to send or facilitate the sending of a commercial electronic message that contains an Australian link or is not a nominated commercial electronic message. Commercial electronic messages should have a sender’s information that is correct. A commercial electronic that has an electronic link should only be sent if the message clearly and correctly shows the person or an organization that authorized the message to be sent or the message has correct information regarding how the addressee can readily contact the person or organization and that the information conforms to the conditions within the regulation. The information is considerably likely to be valid for not less than 30 days after sending the message (Heilbronn 56). A commercial electronic message should not be sent unless the message has a statement whereby the addressee can use the electronic address within the message to send an unsubscribe message to the person or organization that authorized the message to be sent. On the rules regarding address-harvesting software and harvested address lists, an individual should not supply the software, the right to of using the software, a harvested-address list or the right to make use of the harvested-address list to another individual. The address-harvesting software, a right to utilize the address-harvesting software and the right to utilize a harvested-address list should not be acquired. An individual should not use address-harvesting software or a harvested-address list if the individual is physically present at Australia the time it was being used or a body corporate that operates businesses or activities within Australia the time it was being used (Hinchy 90). Civil penalties Pecuniary penalties are charged if civil penalty provisions are contravened and the proceedings to recover the penalties are instituted in the Federal Court. Moreover, the Federal Court can make ancillary orders, instructing the victim who was contravened of the civil provision to be compensated with payment. The Federal Court can also instruct Commonwealth to be paid a sum up to the sum of any financial benefit that is attributed to a contravention of a civil penalty provision (Bottomley & Bronitt 46-75). Pecuniary penalties if civil penalty provisions are contravened If the federal Court finds that an individual has contravened a civil penalty provision, the Court can authorize the individual to pay to the Commonwealth such penalty for each contravention. For the Federal Court to establish the pecuniary penalty it should have regard to each and every relevant issue and this includes the nature and the extent of the contravention, the nature and the extent of any loss or damage that arose from contravention and the situation that the contravention occurred. Furthermore, the Court should also establish if the individual had earlier been found by the Court within the proceedings under Spam Act to have committed a similar offence and when the Court establishes that it is suitable to do so, if the individual had earlier been found by a court within a foreign country to have committed a similar offence (Chisholm & Nettheim 97-105). Maximum penalties for contravening a civil penalty provision The maximum penalty that an individual can pay under subsection 24(1) for contravening a civil penalty provision is dependant of if the individual has a previous record of contravening the civil provision, if the individual is an organization or if the civil penalty provision is subsection 16(1), (6) or (9). If an organization has no previous record regarding s certain civil penalty, the penalty that can be paid under subsection 24(1) by the organization should not go beyond: In case the civil penalty provision is subsection 16(1), (6) or (9) - penalty units. In any other case-50 penalty units. If the federal finds that an organization had on a certain day committed two or more contraventions of the civil penalty provision-the sum amount of the penalties that should be paid under subsection 24(1) by the organization in regard to the contraventions should not surpass: In case the civil penalty provision is subsection 16(1), (6) or (9)-2,000 penalties. In any other case-1,000 penalty units (Booker 58-65). If a person does not have a previous record to a certain civil penalty provision, the penalty that can be paid under subsection 24(1) by the individual in regard to a contravention of the civil penalty provision should not go beyond: If the civil penalty provision is subsection 16(1), (6) or (9) - penalty units. In any other case, the penalty is 10 units. If the Federal Court establishes that an individual has, on a certain day committed 2 or more contraventions of the civil penalty provision, the sum amount penalties that can be paid under subsection 24(1) by the person in regard to the contraventions should not go beyond: In case the civil provision is subsection 16(1), (6) or (9) – 400 units. In any other case the penalty is 200 units. If an organization has had a record of having flawed a certain civil penalty provision, the penalty that can be paid under subsection 24(1) by the organization should not go beyond: In case the civil penalty provision is subsection 16(1), (6) or (9), the penalty is 500 units. In any other case the penalty is 250 units. If the Court establishes that an organization had on a certain day committed 2 or more contraventions of the civil penalty provision, the sum amount of the penalties that can be paid under subsection 24(1) by the body should not go beyond: In case the civil penalty is subsection 16(1), (6) or (9) the penalty is 10,000 units. In any other case, the penalty is 5,000 units. In case an individual has a previous record of having violated a certain civil penalty provision, the penalty that should be paid under subsection 24(1) by the individual should not exceed: In case the civil penalty is subsection 16(1), (6) or (9) the penalty should be 100 penalty units. In any other situation, the penalty should be 50 units. If the Federal Court establishes that the individual has, on a certain day committed two or more contraventions of the civil penalty provision, the sum amount of the penalties that can be paid should not go beyond: In case the civil penalty is subsection 16(1), (6) or (9) the penalty should be 2,000 penalty units. In any other situation, the penalty should be 1,000 units (Booker 58-67). Meanwhile, there are several actions that are taken to recover pecuniary penalties and these are facilitated by federal Court and the victim of the contravention is compensated accordingly after the court establishes if the victim suffered the loss due to one or more contraventions by another individual of section 16 in regard to sending of the commercial electronic messages and in evaluating the level of compensation that should be paid. Ancillary orders when recovering the financial benefit The Court can, on the application of ACMA, authorize an individual to pay Commonwealth a sum of money up to the sum of financial benefit if in one or more happenings under section 26, the Federal Court establishes that an individual has breached one or more civil penalty provisions and that the Court is satisfied that the individual had gotten financial benefit that can be considerably attributed to any breach. The Federal Court can also authorize under section (1) if or not it makes an order under section 24 or an application under subsection (1) can be made at any time in six years after the breach concerned. In regard to injunctions, the federal Court can award injunctions in regard to breaches of civil penalty provisions (Vines 19). Enforceable undertakings An individual can give ACMA an enforceable undertaking in relation to an issue related with either commercial electronic messages or address-harvesting software. In regard to international convections, the regulations can make a provision that tackles commercial electronic messages as well as address-harvesting software. The issue of consent is also tackled within the Act whereby the perception of consent is applicable to section 16 which affirms that unsolicited commercial electronic messages should not be sent and subsection 16(2) which provides a breach of subsection (16)1 takes place in case the applicable electronic account holder consented for the message to be sent (Booker 78-88). The Act also contains the infringement notices whereby it forms a system of infringement notices for the breaches of civil penalty provisions as a substitute to the establishment of proceedings within the Federal Court. For instance, an infringement notice can be given if an authorized individual has, on a certain day, committed a breach once or more on a certain civil penalty provision, the empowered or authorized individual can give to the individual an infringement notice in connection to the breaches. The amount of penalty is on the infringement notice that is given to an organization. The penalty that is specified within an infringement notice offered to the organization should be pecuniary penalty equivalent to the number of penalty units gotten after all the evaluations and workings. Spam Act 2003 consists of Act No. 129, 2003 (Waller 56-65). Conclusion In my view, Spam Act 2003 has been effective in curbing the spread or sending of spam. This is because the Act has made it possible to be able to illegalize and hence reduce the number of unsolicited commercial messages that are sent in Australia or in place of Australia entity. The prohibition of spam shows that the Australian government’s statement that spam is characteristically anonymous, random and international. These characteristics make spam a popular means of sending promotions that may be illegal or unviable. Spam Act 2003 implemented several amendments to the Telecommunications Act and the ACQ Act which has enabled effectual and successful investigation and enforcement of contravenes of the Spam Act. Work cited Booker, K. et al. Federal Constitutional Law: An Introduction. Sydney: Butterworth’s, 1998. Bottomley, S & Bronitt, S. Law in Context. Sydney: Federation Press, 2006. Chisholm , R & Nettheim, G. Understanding Law. Sydney: Lexis Nexis, 2007. Cook, C et al. Laying Down the Law (6th ed. Sydney: Lexis Nexis, 2005. Heilbronn, G. Introducing the Law. Sydney: CCH, 2008. Hinchy. The Australian Legal System: History, Institutions and Method. Sydney: Pearson, 2008. MacAdam, A & Pyke, J. Judicial Reasoning and the Doctrine of Precedent in Australia. Sydney: Butterworths, 1998. Parkinson, P. Tradition and Change in Australian Law. Sydney: Law Book Co., 2005. Vines, P. Law and Justice in Australia: Foundations of the Legal System. Melbourne: Oxford University Press, 2005. Waller, L. An Introduction to Law. Sydney: Law Book Co., 2000. Read More