AUSTRALIAN APPROACH TO SPAM REGULATION

Australian Approach to Spam Regulation

Australian Approach to Spam Regulation

Introduction

Such emails as those described above are commonly known as spam. They are sometimes also known as junk mail. Although they are concerned with a variety of subject-matters (medicines to pornography), what they have in common is that they are generally unsolicited and are usually sent in bulk on the pretext of offering services or goods for sale to the recipients.

Whatever form it takes, spam is annoying, infuriating and embarrassing to the individual

In view of the recent enactment of anti-spam legislation in the US (the Can-Spam Act) and South Korea (Information & Communications Act), which are two of the largest sources of spam in the world, this article will look at these two Acts and compare them with the Personal Data and Protection of Privacy Directive (the Privacy Directive) in Europe as well as the UK's Privacy Regulations which implement the Privacy Directive. Consideration will also be given to the recently enacted Spam Act 2003 in Australia.

The aim of this article is to contrast European and Australian anti-spam legislation with the legislative measures in the United States, Australia and to a limited extent, South Korea (due to restrictions on available material on Korean laws) in order to ascertain the adequacy of EC legislation in this area. The US, Australia and South Korea were chosen as they are among just a handful of countries outside Europe which have enacted specific anti-spam laws. Most countries outside Europe currently depend on existing data protection, privacy or computer-related legislation, instead of spam-specific legislation to deal with the issue of spam. Equally, from such an analysis, we can also glean some insight into the adequacy of the US, Australian and Korean legislation, thus gaining an overall impression of legislative efforts on this issue worldwide.

What is spam?

It is useful to consider what exactly is meant by spam. The repeated mass mailing of unsolicited commercial emails usually springs to one's mind when the word spam is referred to. It has been described as “…the bulk-mailing, sometimes repeatedly, of unsolicited email messages, usually of a commercial nature, to individuals with whom the mailer has had no previous contact and whose email addresses the mailer collected from the public spaces of the internet: news scripts, mailing lists, directories, websites, etc.”

It has also been recognised in certain quarters that other forms of electronic communications: automated calling machines, short message service (SMS) and telefax, also pose a similar problem to that caused by emails and ought also to be considered as spam or at least regulated as strictly as spam.

Further, mass-mailed unsolicited commercial emails should be distinguished from those emails which are sent as a marketing tool by a legitimate company with whom the recipient has had some prior dealings. These latter emails may also be considered spam if the recipient is unable to object to the same or similar emails sent in future by the same company.

Whatever form it takes, spam is annoying, infuriating and embarrassing ...