Most Read Contributor in Australia, September 2016
Communications watchdog Australian Communications and Media
Authority (ACMA) has recently accepted another enforceable
undertaking from a company for contraventions of the Spam Act 2003
(Cth) (the Act).
This latest undertaking was given by nightclub promoter Urban
Agent after investigations into their SMS marketing practices
revealed the company failed to comply with the Act by sending
unsolicited text messages without stating who they were from or a
way to opt out. In order to address these revelations, Urban Agent
undertook to pay ACMA $4500, train its employees, and provide
quarterly compliance reports to ACMA for a period of 2 years.
This result follows a dramatic rise in complaints over SMS spam
and a string of enforcement action taken by ACMA. Last year, the
Federal Court imposed fines totalling $22.25 million after ACMA
bought an action against creators of a SMS scheme that sent Spam to
victims using details gained via fake internet dating profiles.
SMS marketing and the Spam Act
The Act prohibits unsolicited commercial electronic messages,
including SMS and emails, being sent without consent. Even where
there is consent, either express or implied by the relationship
with the recipient or their conduct, senders of text messages must
ensure compliance with the Act and the SPAM Regulations 2004. This
includes ensuring that messages:
clearly identify who is responsible for sending the message,
and how they can be contacted;
specify an address which recipients can use to unsubscribe;
contain information which is reasonably likely to be accurate
for a period of 30 days after the message was sent.
Penalties for a breach of the SMS provisions in the Act can be
up to $1.1 million per day for corporations and $220,000 for
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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