articleone : spam in australia
Lately there's been a crippling amount of spam filtering into my inbox. Luckily, my inbox has been offline for the past two weeks, so none of it has been getting through. More disturbingly, however, is that spammers have been "joe jobbing" webloggers, which is illegal in the US. Then I saw an article about suing spammers and started to wonder if there is any recourse for an Australian in regards to Unsolicited Bulk Email.
The first place I turned to was the Telecommunications Industry Ombudsman, but it turned out to be the first step in a long chain of buck-passing. The site states that "The TIO cannot investigate complaints about the content of a content service, such as websites, emails or '190' information services". Instead, the TIO pointed me in the direction of a "Directory of Consumer Dispute Resolution Schemes and Complaint Handling Organisations 2001", Consumersonline.gov.au.
Consumersonline.gov.au claims to be the Commonwealth Government's One-Stop-Shop for Consumer Information Online. Which is true - I stopped there once to find a link to the Australian Competition and Consumer Commission.
The ACCC, unfortunately, was no help either, stating they were not interested in Spam (unless it involves online schemes/ripoffs) or offensive content (you may wish to lodge a complaint with the Australian Broadcasting Authority).
I surfed over to the ABA, but found that "ordinary email, including unsolicited email (spam) is not covered by the scheme. However, if an email contains a URL or other information about prohibited or potential prohibited content, a complaint can be lodged about that content". The ABA had a link to The Coalition Against Unsoliciated Bulk Email, Australia. I had just fallen off the Government websites, and was now onto public organisations.
CAUBE was actually moderately helpful, claiming "existing government guidelines render both spam to your customers, and to others inappropriate, and existing industry codes also address both types of spam, rendering it illegal for businesses covered by these codes to send certain types of spam. Common Law remedies also appear to render spam illegal in Australia".
So, finally, I had found out that spam is, in Australia, actually illegal. But what could be done about it?
The next thing I did was to try to determine which was the appropriate Government Agency to contact. Two different ones stood out; the The Australian Federal Police E-Crime division (02 9286 4819). I figured the best place to start would be the Federal Police E-Crime division, because, if nothing else, they would be able to tell me who to call in the NSW Commercial Crime Agency.
I spoke to the NSW Media Relations Manager for the Australian Federal Police, who stated that the official stance of the AFP was "no comment". However, he did referer me to the National Office for the Information Economy (NOIE). There I spoke to the Manager of Public Affairs. I found out that an inquiry into spam and the possible legal repercussions had been begun by Senator Richard Alston on the 16the February of this year. However, the details of the inquiry have not yet been released.
NOIE Public Affairs referred me to The Office of the Federal Privacy Commissioner. They had the most comprehensive explanations for what legal actions can be taken about spam.
In Australia it all comes down to collection, disclosure and jurisdiction. If a person voluntarily gives out their email address, the list creator is virtually free to do anything they like with the information. They can keep it, sell it and compile it. However, they can only use it for the purposes that the email owner consented to. Therefore if the email address is sold by one site to another, and then used by the second site for a purpose not consented to, there is a breach of the National Privacy Principals. Unfortunately, if the organisation using the email address is outside of Australia, or has an annual turnover of less than A$3,000,000/Annum, then the Privacy Principals may not apply.
If there is a breach (such as a third party use not consented to), the first step for an Australian end-user is to complain to the spammer. Practically, this is almost always impossible, as few spammers provide a contact address. The second step is to complain to the Privacy Commission. They are a group of 45 people who have the Authority to investigate the complaint. Their first step will likely be to request that the spammer remove the end-user's details from their roles. Unfortunately, there is NO legal requirement in Australian law that the request be actioned. However, if the spammer does refuse, the issue can be raised to the Privacy Commissioner, who can seek to make an enforceable determination against the spammer. If the spammer continues to refuse to accept this, the end-user can then take a case to the Federal Court against the spammer.
For instance, say you gave your email details to a news aggregating site when registering, and they sold this to a email list aggregator, who then on-sold it to a porn site. The porn site then spammer your email address. This would be an unconsented use of the email address. You would then raise a complaint with the spammer. If they didn't respond, you could then raise it with the Privacy Commission (and, incidently, the ABA regarding the porn content). The Privacy Commission would then go to the spammer with the objective of having your details removed. If the spammer refused, or continued to spam, you could then ask the Privacy Commissioner to make a determination against the spammer. If this happened, and the spammer continued to spam, you could then take the spammer to the Federal Court with the Privacy Commissioner's determination as supporting ammunition. However the waters have yet to be tested fully about what compensation you will receive for your efforts.
One issue that is still unclear is the use of email harvesters. Putting an email address online logically makes it public domain. However privacy laws require that any email aggregator ensure that the end-user remains informed of the aggregation. Therefore there seems to be some issues with harvesting online email addresses for the use of spam. However the Privacy Commission weren't sure whether this was a breach of the Principals or not.
To recap: what can you do about spam in Australia?
If it contains a scam, such as a pyramid scheme or Nigerian money transfer, you can report it to the ACCC.
If it contains porn or other offensive material, you can report it to the ABA.
If it comes from a site/domain/company you have not consented to use your email address, you can complain to the The Office of the Federal Privacy Commissioner (1300 363 992).
And if it comes from outside of the US, you're out of luck.
The first place I turned to was the Telecommunications Industry Ombudsman, but it turned out to be the first step in a long chain of buck-passing. The site states that "The TIO cannot investigate complaints about the content of a content service, such as websites, emails or '190' information services". Instead, the TIO pointed me in the direction of a "Directory of Consumer Dispute Resolution Schemes and Complaint Handling Organisations 2001", Consumersonline.gov.au.
Consumersonline.gov.au claims to be the Commonwealth Government's One-Stop-Shop for Consumer Information Online. Which is true - I stopped there once to find a link to the Australian Competition and Consumer Commission.
The ACCC, unfortunately, was no help either, stating they were not interested in Spam (unless it involves online schemes/ripoffs) or offensive content (you may wish to lodge a complaint with the Australian Broadcasting Authority).
I surfed over to the ABA, but found that "ordinary email, including unsolicited email (spam) is not covered by the scheme. However, if an email contains a URL or other information about prohibited or potential prohibited content, a complaint can be lodged about that content". The ABA had a link to The Coalition Against Unsoliciated Bulk Email, Australia. I had just fallen off the Government websites, and was now onto public organisations.
CAUBE was actually moderately helpful, claiming "existing government guidelines render both spam to your customers, and to others inappropriate, and existing industry codes also address both types of spam, rendering it illegal for businesses covered by these codes to send certain types of spam. Common Law remedies also appear to render spam illegal in Australia".
So, finally, I had found out that spam is, in Australia, actually illegal. But what could be done about it?
The next thing I did was to try to determine which was the appropriate Government Agency to contact. Two different ones stood out; the The Australian Federal Police E-Crime division (02 9286 4819). I figured the best place to start would be the Federal Police E-Crime division, because, if nothing else, they would be able to tell me who to call in the NSW Commercial Crime Agency.
I spoke to the NSW Media Relations Manager for the Australian Federal Police, who stated that the official stance of the AFP was "no comment". However, he did referer me to the National Office for the Information Economy (NOIE). There I spoke to the Manager of Public Affairs. I found out that an inquiry into spam and the possible legal repercussions had been begun by Senator Richard Alston on the 16the February of this year. However, the details of the inquiry have not yet been released.
NOIE Public Affairs referred me to The Office of the Federal Privacy Commissioner. They had the most comprehensive explanations for what legal actions can be taken about spam.
In Australia it all comes down to collection, disclosure and jurisdiction. If a person voluntarily gives out their email address, the list creator is virtually free to do anything they like with the information. They can keep it, sell it and compile it. However, they can only use it for the purposes that the email owner consented to. Therefore if the email address is sold by one site to another, and then used by the second site for a purpose not consented to, there is a breach of the National Privacy Principals. Unfortunately, if the organisation using the email address is outside of Australia, or has an annual turnover of less than A$3,000,000/Annum, then the Privacy Principals may not apply.
If there is a breach (such as a third party use not consented to), the first step for an Australian end-user is to complain to the spammer. Practically, this is almost always impossible, as few spammers provide a contact address. The second step is to complain to the Privacy Commission. They are a group of 45 people who have the Authority to investigate the complaint. Their first step will likely be to request that the spammer remove the end-user's details from their roles. Unfortunately, there is NO legal requirement in Australian law that the request be actioned. However, if the spammer does refuse, the issue can be raised to the Privacy Commissioner, who can seek to make an enforceable determination against the spammer. If the spammer continues to refuse to accept this, the end-user can then take a case to the Federal Court against the spammer.
For instance, say you gave your email details to a news aggregating site when registering, and they sold this to a email list aggregator, who then on-sold it to a porn site. The porn site then spammer your email address. This would be an unconsented use of the email address. You would then raise a complaint with the spammer. If they didn't respond, you could then raise it with the Privacy Commission (and, incidently, the ABA regarding the porn content). The Privacy Commission would then go to the spammer with the objective of having your details removed. If the spammer refused, or continued to spam, you could then ask the Privacy Commissioner to make a determination against the spammer. If this happened, and the spammer continued to spam, you could then take the spammer to the Federal Court with the Privacy Commissioner's determination as supporting ammunition. However the waters have yet to be tested fully about what compensation you will receive for your efforts.
One issue that is still unclear is the use of email harvesters. Putting an email address online logically makes it public domain. However privacy laws require that any email aggregator ensure that the end-user remains informed of the aggregation. Therefore there seems to be some issues with harvesting online email addresses for the use of spam. However the Privacy Commission weren't sure whether this was a breach of the Principals or not.
To recap: what can you do about spam in Australia?
If it contains a scam, such as a pyramid scheme or Nigerian money transfer, you can report it to the ACCC.
If it contains porn or other offensive material, you can report it to the ABA.
If it comes from a site/domain/company you have not consented to use your email address, you can complain to the The Office of the Federal Privacy Commissioner (1300 363 992).
And if it comes from outside of the US, you're out of luck.