The Affectivity of the Spam Act 2003 in Protecting Individuals from Spam - Assignment Example

INTRODUCTION TO AUSTRALIAN LAW The spam act 2003 Internet spam is governed by the spam act which was enacted in 2003. It has a number of sections that seek to define more about they act and the meaning of some of the words and terms that have been used. Spam is a term that is used to define junk mails that are received in the mails. The mails may not have a definite source and thus its content may not be verified. There are many definitions of the term which may vary from dictionary to dictionary and according to the laws that govern the act in different countries (Malcoln, Microsoft word). According to the spam bill 2003, the term has been defined as ‘unsolicited electronic messages’. The spam act of Australia does not operate on a specific definition of spam and will pass out its judgement in accordance to the offence. The main reason why the country decided not to have a definite definition of the same is because of the changes that are happening technologically. It hence leaves room for the court to pass judgments basing on the technology that has been used. Parts and sections of the act The Australian spam act has a total of seven parts and 47 sections. The first part of the section is basically an introduction to the entire act. Its aim is to make people understand what is contained in other section and provides a definition of some of the terms that may be used. It has a guideline of the procedure that may be followed by an individual who wants to understand the section better. The different section of the second part shade light on the principles that need to be followed by corporations and organisations when sending commercial messages. Section 16 of the act prohibits commercial agencies from sending messages to mails that have an Australian link. The 18th section provides guidelines that must be followed by such agencies when they have to send such messages to their recipients (pdf 7). The section also presents three kinds of defence measures that can be followed by the guilt parties which include; ignoring the Australian link, prior consent and a mistake that was made. The section also requires the organisation to send the messages with the unsubscribe options that will enable the users to disable them at their convenience. The 3rd part of the section provides guidelines on the software that is used to harvest addresses and the list that contains addresses that have been harvested. 19th section of this part has a clear summary of this section and prohibits the general use of the ‘address harvesting software’. There are however certain incidences in which the software may be used. Sections 20 to 22, gives guidelines on when and how the software should be used. It also warns organisations that are eligible to use such addressees from distributing the list to other organisations or individuals. The sections also require that the lists that have been harvested using the electronic software should not be acquired from a third party, supplied or even used. Address harvesting software Section four gives the definition of the address harvesting software in relation to the Australian law. The software is defined in two perspectives the first is, a software that has been specifically designed for searching the internet using electronic means with the aim of finding addresses, and the second is a software that is designed to collect, compile, capture and harvest the addresses that has been collected using the software. According to the section, a harvested address list is a list that has been obtained after the electronic software has been used to search and compile them from the internet (pdf 12). In the same section defines the penalties that individuals and organisations that violate the provisions contained in the section will be subjected to. The fifth party has injunctions that will enable the federal court to prosecute victims that have been involved in the violation of the act. The 6th part of the section contains enforceable undertakings that an individual will give to the Australian communication and media authority (ACMA). This part gives permission to the ACMA to accept applications by individuals to formally use the software without having to be prosecuted under the guidelines that have been proposed in the section. Section 19 of the 6th part gives the enforcement procedures that are to be applied on a person that breaches the procedures outlined in the section. The last and the final part of the act, part 7, have outlined the miscellaneous provisions that will be applied concerning spam. Section 41 gives ACMA the powers to issue warning to individuals or organisations that may be reported to contravene civil penalty provisions. The warning that has been issued does not however prevent ACMA from acting according to the provisions that have been set in section 4 of the act. Schedule 1 defines the meaning of designated commercial electronic messages to ensure proper application of the act (pdf 9). According to the schedule, such messages are exempt from prohibitions that have been set under section 16. This implies that such software can be used to send messages as long as they qualify under this category. Schedule 2 of the section defines the meaning of the term consent when dealing with the sending of electronic messages. This is used especially when the court has to handle cases where an account holder has prosecuted a company or an individual who has sent him spam. There are different provisions where the guilty party may defend himself using the provision in relation to consent. For instance an individual many be receiving certain messages because they requested to receive them. Requesting may not necessarily be direct, it is considered to be any action that the account holder takes in the internet that will give the sender permission to send the messages. There are other legislations in the Australian constitution in which the spam act is dependant on. The telecommunication which was enacted in 1997 has stipulated additional regulations that have to be followed in relation to the regulation of spam. The provisions are however set specifically to govern industries and commercial agencies. They are the trade practices similar to those that have been mention in section 4 of the spam act. When a case involves the sending and receiving of spam from an industry, the court will refer to provisions in the telecommunication act and the spam act. The trade practices act which was enacted in 1974 is used in association with the above act (pdf 15). Under the trade practices act, a definition of acquiring goods by either purchasing, taking them on lease or exchanging them for whichever purpose. An individual may hence acquire software from the internet freely with the sole reason of violating the provisions that has been set in the spam act. When such an individual is brought before a court of law, such provisions will be used in determining whether the practices that the individual is involved in are valid or not. The affectivity of the act in protecting individuals from spam Considering the provisions that have been provided in the act, it will be good for us to reflect on how they are being used and whether they are protecting the public from spam. Spam messages have been a nuisance to most account holders considering some of the details that are supplied. Some of the addresses that are used to send such messages are invalid and is therefore difficult for an account holder to determine where they have come from. There are some that have not really come with the options of disabling the messages and hence even difficult to track the sender. Even though there are provisions under the Australian law, most people are not able to report the nonsense messages that they keep receiving from the internet. It is important to know that as much as the spam act exists, most people are not even aware that they can seek legal intervention if they receive such messages. The process that is involved in reporting such offences may not be easy for an ordinary citizen. Most of them are not even informed of the procedures involved in prosecuting the concerned and hence deciding to ignore them. Most people that receive spam usually decided to follow the shortcut of simply deleting the messages or ignoring them rather than facing the long procedure of prosecuting the individual. This basically means that the act is being underutilized as many people fall victims of such messages. The field of information technology has experienced a lot of revolution that is making it easier for individuals to send such messages without being recognized. The individuals engaged in the act are fully aware of the mistakes that they are involved and will hence use cleverer means to send them. They send the messages after a long interval of time to prevent the concerned individuals from prosecuting them. The times when messages used to come in regular intervals and thus being a nuisance to the people is long gone, the hackers are now using clever ways. This does not however prevent individuals from receiving spam messages only that they are not in irregular intervals. This is a practice that is encouraging the sending of such messages without the offenders having to face the law. On the other hand, the act has to be complemented considering that it has reduced on the occurrence of spam messages. It is not like the past years when a person would go to browse the internet only to be welcomed by dozens of messages from unknown sources that he or she has never requested for (pdf 15). In case such messages are received on a regular basis, there are links and guidelines that will enable the subscriber to discontinue them. They are generally meant to make certain suggestions to individuals some of them which may be profitable. They are sales and promotion procedures that are sent by companies only that they are not sure of the individuals that may benefit from the messages. By sending them to a certain list, they will be able to obtain their potential customers who will go ahead and accept receiving the messages and even act upon them. With such provisions also, companies that were not genuine are gotten rid off as the ones that are permitted to send such messages are known. They make their identities known to the customers involved and hence being able to be contacted by them. Some of the spam messages that are received may be a nuisance yet irresistible. They have in fact led to increased immorality among the young people who seem not to realize the harm that they are causing to them. Some of the sites that they are directed to may contain pornographic materials or rather giving them directions on how to access such materials. This may be something that is having very negative consequences to the youth, especially those that are not be mature enough to handle the content. They will hence consent to receiving such messages due to their curious mind. It is mainly their parents that can help them through and get the offenders prosecuted, but the youth may understand that what they are doing is not right and hence not letting their parents know of the sites. The parents may however realize that their children are access to such messages in the internet considering their addiction to the internet and their subsequent change in behaviour. They may however not have the avenues to prosecute the individuals involved considering that they may not be access to the accounts of their children and the fact that their children consented to receiving such messages. It hence remains that the spam act is not in itself sufficient in protecting the public against spam. The procedures that are taken in prosecuting individuals that may be involved in sending spam messages may take quite some time. This is due to the fact that some of the sources where the messages are received may be unknown and will require the involvement of experienced personnel to track them. The court will not be able to take action unless they acquire enough evidence from the victim. The process of tracking the sender may be too long that the individual may give up on the fight. More so, if the hackers realise that they are being tracked, they may be involved in corruptive deals with the personnel tracking them and hence rendering the prosecution process dysfunctional (pdf 3). It may also be difficult to determine the exact kind of software that has been used to harvest the emails due to technological advancements. This may hence make the guilty parties to twist everything around and claim to have received consent from the account holder. It may be difficult for the victim to defend themselves in a court of law concerning the same especially if they are not well informed of the technological advances that are taking place. The spam act may be prohibiting the sending of spam messages to any Australian link, there are however minimum measures that are being taken to ensure that such links are not accessible. Telling a person not to do something does not prevent them from doing it. In fact it is a procedure that will serve as a warning telling them that they can do it as long as they are not caught. When it comes to making money, or gaining some credible thing by involving in a certain crime, people are always ready to take the risk. The emails that are harvested are usually sampled and the messages sent to unsuspecting individuals. The hackers will ensure that the messages go to people that are unlikely to report them probably due to their ignorance. This hence means that as much as people are protected by the law, they are not able to access the protection. There are hence many individuals in Australia that are irritated by spam messages yet not even aware that they can be protected. They may be aware that the act exist but not care to seek legal intervention, they simply don’t have the time to make the follow up or they simply don’t care about the protection. The government should hence look for other alternative measures that can be used to provide adequate protection of the public means. Even though there are email software’s that are used to get rid of suspected spam messages, the hackers still access the accounts through other technological measures. The government should hence look for alternative measures of ensuring that unauthorised spam is not send to the accounts of the people. Some of the spam messages that are received by individuals may be authorised by the government and not the individuals. There are people who completely hate receiving messages from unknown sources no matter what the messages may contain. They never bother to open them and delete them not knowing that there are links that will make them stop receiving similar messages. The more they receive the messages the more they delete them. The senders may hence assume that the recipient has consented to receiving the contents of the messages when in the real sense they don’t even know what the messages contain. Spam messages usually come with many links that are provided in between the message. For an individual to know the link that will enable him or her to disable the messages from being send to the account, they may have to read through the entire content. Some of such contents are very long and a person may not be patient enough to read through them. For a person that is determined to discontinue them, probably because of the number of times that they have received them, they waste their time and hence being a bother having to read through the content. Most of those links are usually provided at the end or almost at the end of the message. Whether the account holder unsubscribes to the messages or not, the sender would have conveyed the message and hence succeeded in marketing the contents. By allowing the messages to reach the accounts of people, they cause certain inconveniences which may not be covered under the act considering that some of the senders use acceptable means to send the messages. If the act would provide provisions where individuals that are interested in receiving certain contents personally go to the sites to subscribe to them, then it would have been beneficial. From the above analysis of the spam act and the provisions contained in the act, it can be concluded that the act has regulated on the amount of spam being received by probably 40%. It therefore means that there is a lot that needs to be done to ensure maximum protection. The act also seems to protect a small percentage of the people of Australia who are aware of the existence of the act and who are patient enough to go through the legal procedures. This hence defeats the purpose of the law in protecting the entire nation from the spam. The best way of protecting citizens is controlling the messages from their sources and not from individuals’ accounts (pdf 6). More stern measure should be employed on individuals and organizations that may been found guilty of the offence, to serve as an example to others that may have been in the practice or considering going the same way. The law should be made in a way to serve the entire population and not the able few. This will require several amendments to be done to the existing act or look for alternative measures that will put the situation under check. The procedures that may be implemented should also be done in consideration of the developments being done in the field of information technology so that they are not rendered unenforceable after a certain period of time. Reference list Introduction to Australian law (12) pdf Introduction to Australian law (14) pdf Introduction to Australian law (15) pdf Introduction to Australian law (3) pdf Introduction to Australian law (6) pdf Introduction to Australian law (7) pdf Introduction to Australian law (9) pdf Malcoln, J. Recent developments in Australian spam law, Microsoft word Read More