Australian Approach to Spam Regulation - Coursework Example

Name Tutor Course Date Australian Approach to Spam Regulation Introduction Australia being a former British empire and consequently a member of the Commonwealth operates under the act of constituting the Commonwealth of Australia which was formed after it was liberated from being a British empire. This act states that commonwealth must be established in Australia and that its constitution must be adopted in Australia. The parliament of commonwealth that is based in other colonies shall also make laws that may start to be used after the law is used. This act, plus other laws that are made by the Commonwealth parliament shall be binding and applying to all the judges in all the courts and the people in the various states in Australia regardless of any existing laws. Section 4 of the Australian commonwealth constitution defines spam as a “junk mail” which is sent through the electronic mail by one person to another person’s email address. This spam act is found in the same section of the constitution. With the current changes in technology, the short message services provided by the mobile phones services providers are also included in the same definition. An explanatory Memorandum explaining the spam bill defines spam as unwanted electronic messages so as be neutral electronically. The Spam Act (2003) The spam act however depends on other laws. It has provisions from the Telecommunications Act 1997 and the Trade Practices Act 1974. In relation to these legislative acts, he Spam Act defines acquisition of the address harvesting software as a means of obtaining good or services through leasing, exchanging or purchasing. The spam act in the Australian constitution is divided into seven parts. The first part of the act is the introductory part that explains the legislative protocols that are provided in the act. The second part of the act explains the rules for distributing the electronic messages. In section fifteen of the second part, there is an overview of the major limitations and the requirements of the electronic messages. This section provides a prohibition of sending spam messages where one is in an Australian link. However, there are an exception to this provision which include advance consent, lack of knowledge of the Australian link and a mistake. Australian link in this case means that the message has originated from Australia, or that person or the organization that sent the message was in Australia by the time device that message was sent, or the device that was used to send the message was in Australia or that the account holed who received the spam message was in Australia. The third part of the spam act provides an outline of the rules concerning address-harvesting soft ware and the list of harvested address. This part prohibits the use of the harvested address. This states that harvested address lists should not be acquired, supplied or used. Section four of the same part defines address harvesting soft ware as one that is designed for a specific purpose of searching for the internet address, collecting them and compiling them together. The same section also defines harvested address list as a collection or a compilation of the internet addresses. The fourth part of the spam act talks about fiscal penalties that are applied for the scam crime victims. This sets out the civil penalty provisions. Part five of the act is about injunction that the court should grant in the case of the breach of the act. Part six talks about the enforceable activities that a person may offer to the Australian Communications and Media Authority. This part allows the media authority agree with the official administrative activities instead of instituting proceedings. The last part of the act explains about the miscellaneous provisions. Section forty one of this part enables the Australian Communications and Media Authority to give an official warning to an individual who breaks a civil provision (Smith, & Kutais, 56) The spam act on the Australian constitution also has provision for authorisation of sending the commercial spam messages. In this section, there is the attribution of the authorisation to an organization and self authorization. For organizations, an individual may authorise the sending of the message and he or she may send the message on behalf of the organization. In this case, the authorization of sending the spam message is on the organization and not the individual. Another provision is that if the message was sent by an individual or an organization and not with the authority of any other party, the organization that sent the message or the individual is taken to be the one who has authorized. Charges on this case are therefore placed on the person or the organization that authorized the sending of the message. The Spam Act also has two schedules. The first schedule explains the meaning of “designated commercial electronic messages” for the uses by this act. These are exempted from the prohibition of sending unwanted commercial messages. The second schedule stats the definition of consent as used in sending of the spam messages. Consent is explained as a prior request for the message by the recipient or could be drawn from the individuals concerned in case of a business operation. Express consent is where a person requests to be sent for the message. Rules concerning the sending of electronic messages The first rule states that unwanted electronic messages should not be sent. Any person should not send or be compelled to send a commercial electronic message. A commercial message means that the individual or the organization has intentions of making money or doing business through the message. This message should not be sent to anyone’s electronic address. The message sent should not have any link with Australia. Another rule state that the message, if sent, should have clear details of the individual or the organization that sent it. Sending of the message should only be done if the content of the message include the individual or the organization that authorized the sending and that the message indicated how the sender can be accurately reached by the recipient of that message. The message should also be conforming to any existing conditions if any, and that the information should be valid for at least thirty days from the time it is sent. The other rule states that if the commercial electronic message is sent it must have a functional unsubscribed facility. This means that the message should state the recipient of the message should use the sender electronic address to send back an unsubscribed message to the sender or the individual or the organization that authorized the sending of that message. The message should also be written in a clear and easily seen form for clear understanding by the recipient. The rule still mentions that the electronic address of the sender should be able to receive the unsubscribed message of the recipient and various other messages from the recipients of a similar message at any time during the thirty days period from the sending of the initial message. On the same rule, the electronic address should be legally acquired and should comply with any conditions if there. Rules on address-harvesting and usage of the harvested address list The first rule states that no person is allowed to supply, or contract the supply of an address-harvesting software, or issues right to someone for the supply of the software for harvesting the electronic addresses. One should also not supply the harvested address list or use the list even if availed to him or her. Under this rule, the supplier of the address harvesting software should not be originating from Australia or present in Australia at the moment of supplying, or should not be an organization that carries on business activities or have business partners in Australia. The customer of the soft ware should also not be present in Australia or be originating from Australia at the time of receiving the address harvesting software. The customer should also not be an organization that does business or has partners in Australia at the time of receiving the software. The other rule on electronic address harvesting states that no person should acquire or use the address harvesting software or the dress harvested list if this person is in Australia at the moment of acquisition or if it is an organization, is doing business in Australia at the moment it acquires the software. The same statement applies for the address harvested list. An explanation to this rule is that if the address harvesting software is being supplied by another person in a different country, it should not be bought by a person in Australia and should also not be used by the same. Civil penalties Financial penalties are charged for someone who breaks the provisions of the civil penalties. When the cases are taken to the federal court and the judgement is convinced that the person has breached the provision, the court may order the payment to the Commonwealth as a penalty for the breach. When the court is setting the fiscal penalty, it takes into considerations the nature and the level of the breach, the type and the extent of the loss that is caused by the act of contravention and the circumstances under which the person did the contravention. However, there are maximum penalties that can be charged for the cases of civil provisions contravention. Section 24(1) of the Commonwealth of Australia constitution states that the maximum penalty that can be charged depends on whether the person charged has an advance record relating the breach or whether it is an individual or an organization. For the court to determine whether there are losses caused by the sending of the commercial electronic messages and the amount of the penalty to be charged, it takes into considerations several issues such as whether the expenses incurred by the message victims are in relation to the message. It also considers the impact of the message on the victim’s ability to continue with his or her business activities, any harm to the victim’s business reputation as a result of the message, loss of business opportunities following the receipt of the message and any other relevant issues that the court may wish to consider. Australian Communications and Media Authority (ACMA) This is an Australian government body that is charged with the role of controlling broadcasting, telecommunications and radio communications in Australia. This agency is also charged with the work of regulating the contents of the internet. It deals with complains concerning prohibited internet messages. However, Australian Communications and Media Authority does not help in resolving the internet complains but it provides the internet users with information about internet content including the Spam messages. The agency has also developed free software referred to as the SpamMATTERS reporting software for the aim of fighting spam messages. The software is downloaded freely and also freely installed into the Microsoft outlook and Outlook express internet programs. When one has installed the software, one can delete the spam and report it to the Australian Communications and Media Authority by a single mouse click. The software also traces the spam messages that may have bypassed the spam filters and also has the anti spam programs that are in the software. This software also helps the agency officials to identify the sender of the spam messages and take action against them. This agency achieves this by employing several means such as complaint investigation processes, collaboration with the government and creating awareness to the members of the community as well as empowering them on the same. Australian Communications and Media Authority also have the responsibility of administering the online content scheme but the government and the community members have a role to play in the management of internet safety. Enforceable Undertaking A person who is charged may give an enforceable undertaking to the Australian Communications and Media Authority on issues relating to commercial electronic messages and the use of address harvesting soft ware. According to the act, the ACMA may on the other hand accept the undertaking relating to the same issues. However, the person giving the enforceable undertaking to the ACMA may withdraw it or alter the undertaking but only with the consent of the ACMA . However, if the Australian Communications and Media Authority finds that an individual who offered an undertaking has breached the terms, the ACMA may request for a court order form the federal court. If the federal court feels that the person has breached the terms, it may make an order directing that person to agree as per the terms of the undertaking or an order directing the person to make some payments to the commonwealth am amount that equal to the financial gains that the person attained directly or indirectly by breaching the terms. The federal court may also issue an order that it considers appropriate instructing the person to give compensation to any other individual who incurred loss following the breach of the terms, or any other order that the federal court may consider to be appropriate (ACMA, 212) . The court may also assess the required compensation for a breach of an undertaking if it is convinced that the person has breached an undertaking as concerning the sending of the commercial electronic messages. To determine whether the victim of the commercial electronic messages has incurred any loss or damage as a result of breach of the undertaking and also the amount of compensation payable, several considerations apply. These include the extent to which the losses incurred are related to the message sent, the impact of issues brought by the message to the ability of the victim to carry on with his business activities, the damage caused to the persons business reputation, business opportunities lost by the victim as a result of dealing with the message and any other matters that the federal court may fond to be relevant. Other functions of the Australian Communications and Media Authority includes conducting or authorizing research on issues concerning unsolicited commercial electronic messages and address harvesting soft ware. The ACMA also collaborates with the authorities and other concerned bodies on cooperative efforts on prohibiting the sending of the unsolicited electronic messages and the address harvesting software. Designated commercial electronic message According to the spam act, an electronic message is designated if it does not contain no more than the factual information. Other information that is considered is the name, logo and the contact information of the individual or the organization who sent or authorized the sending of the message. If the person is an employee, the message should include the name, logo and the contact information of the employer. If the person is a business partner, the message should contain the name, logo and the contact information of the partnership. If the sender is a director or an officer in an organization, the message should include the name, logo and contact details of the organization. Effectiveness of the Spam Act 2003 in protecting the public against Spam The effectiveness of the Spam Act 2003 in protecting the public against the spam messages has however been questionable. The act has reduced some extent of the receipt of the spam messages but has however legalised some of the messages and this has led to the increase of such messages. Firstly, the provision of allowing consent to get the spam messages being incidental from conspicuous publication should be reversed. The provision is not clear and needs to be amended so as to provide a clarification of the intention of the provision and to narrow down the situations under which it may be inferred. The act also provides an exemption for the unwanted spam messages that contain factual information also has some unclear issues. This is because it is not appropriate for the legislation to compel an individual to pay or to get paid for the unsolicited spam message that is sent to their electronic addresses. The act has an exception for the Australian and overseas government bodies, educational and charitable organizations. Exemption of these bodies encourages them to send the unsolicited commercial messages on issues concerning their own goods and services. These bodies should also be subject to seeking of a person’s consent when they want to send adverts of their goods and services just like any other body. The requirement for a functional unsubscribed facility is not efficient since there are some situations that the sender may have conformed to the requirement but the recipient cannot be able to access the unsubscribed facility. The access is highly limited in the corporate bodies where the recipients cannot send messages back to the address that sent the message. This clause needs to be amended so that the sender can offer means by which such recipients can unsubscribe. The legal system should also not take a single message which is sent to one destined person as spam just because the message has some commercial information. The legislation should therefore indicate some defence circumstances in cases of the single person’s commercial message. Australian Communications and Media Authority inspectors have powers of entry and seizure of people’s homes devoid of a warrant and the consent of the owner. This is not considered to be fair and amendments should be made to incorporate a requirement for a judicial warrant and the consent of the owner. This should also not apply to the recipient of the spam message but to the sender who should be searched for the possession of the address harvesting software or the address harvested list. If the warrant and consent requirements are not effected, then there should be amendment will help prevent the abuse of these powers (ACMA, 13). However, the spam act is not a hundred percent ineffective. Some parts of it are very effective and work well, for example, the provision for the civil penalties and the payment of fiscal penalties to the commonwealth. This penalty is adequate and it helps to curb the habit. The issue of the enforceable undertaking is also another section of the act that is effective. This spam act therefore needs amendments on some few issues to make it fully effective. Works Cited Australian Communications and Media Authority. Media and communications in Australian families 2007: report of the Media and Society Research Project. Austria: Australian Communications and Media Authority, 2007. Smith, Marcia & Kutais, Bell. Spam and internet privacy. New York: Nova Publishers, 2007. Australian Communications Authority. Spam Act 2003: a practical guide for business. Austria: National Office for the Information Economy, 2004 Read More