Planned Australian federal anti-spam legislation will, if passed in its present form, combat not only Australian-based spammers and Australian companies that use spammers.
It also attempts to fight overseas spam, by extending its reach to any spam message received on a device in Australia, unless the spammer can claim ignorance of the fact that the message might arrive there.
New Zealand’s associate IT minister, David Cunliffe, was in Australia last week talking to government and opposition politicians about sundry IT, communications and other matters, including the anti-spam bill. This was adjourned last week at its second reading stage for a parliamentary recess.
Cunliffe expresses personal support for the Australian bill’s opt-in approach, requiring potential recipients to positively express a desire to receive messages. But the New Zealand government will be considering the various approaches taken by other countries, he says, and cannot rule out an opt-out (request not to receive messages) mechanism. The European Community favours opt-in, but US legislative proposals adopt an opt-out stance.
Cunliffe said last week that the Australian approach is not full extra-territorial jurisdiction on day one, which is impossible for a nation to implement on its own. His understanding from Australian officials is that international coverage will be achieved bilaterally, country-by-country, and that assuming the bill’s passage the first “memorandum of understanding” is likely to be signed soon after with South Korea, a source of considerable spam. Eventual full international application is still “the intent” of the bill, he says.
The Australian bill makes it an offence to send an unsolicited electronic commercial message that has “an Australian link”, as defined in section 7. That term covers a message authorised by an individual or company in Australia, or a communication where “the computer, server or device that is used to access the message is located in Australia”.
The bill reinforces its planned international application in section 14, stating that “unless the contrary intention appears, this act extends to acts, omissions, matters and things outside Australia”.
The bill imposes strict opt-in conditions on commercial messages, including a requirement that the sender of such a message should be clearly identified and that it should have a functioning unsubscribe facility, so the recipient can request that no further messages of that kind be sent.
Address-harvesting software must not be supplied, acquired or used, the bill says. An electronic address list produced using address-harvesting software must not be supplied, acquired or used.
The bill, however, exempts “designated” messages from the provisions against sending unsolicited commercial messages and from the requirement to have an unsubscribe facility.
Messages which “contain no more than factual information, with or without directly related comment” and which adequately identify the sender, are designated in a schedule to the bill.
Any message from a government body, registered political party or a religious or charitable organisation is also exempt, providing it only relates to goods or services which the organisation supplies or plans to supply. Educational institutions’ communications with their students or their families concerning the establishment’s “goods or services” are also designated messages.
If passed, the legislation is set down for review in two years from its coming into force.