In a first for Australian spam busting laws, the Australian Federal Court has fined email address harvester and marketer Clarity1 and its ceo over £2.2m. How does this compare with the UK’s spam law enforcement record?
Topic: Email marketing
Who: Clarity 1 and Wayne Mansfield
Where: November 2006
When: Australian Federal Court, Perth
Email address harvester and marketer Clarity1 and its chief executive Wayne Mansfield were the first email marketers to be convicted under Australia's Spam Act 2003.
In proceedings brought by Australia's answer to our Ofcom, the Australian Communications and Media Authority, Nicholson J held that section 16 of the Spam Act had been contravened.
Section 16 (1) states that a person may not send or cause to be sent a commercial electronic message that (a) has an Australian link; and (b) is not a designated commercial electronic message.
But this prohibition does not apply if the recipient consented to the sending of the message.
A commercial electronic message has an Australian link if either the sender has its central management and control in Australia when the message is sent or the computer or server used to access the message is located in Australia or the relevant account holder is present in Australia when the message is accessed. So on this last count UK marketers sending or instigating the sending of commercial email to Australian residents should be taking note.
The alleged numbers of non compliant messages sent totalled over 270 million, of which 74 million were successfully sent to nearly 8 million recipients.
Amongst the defendants' ingenious defences was a "retrospective consent" claim. This was that because the recipients did not unsubscribe on receipt of the messages, it was reasonable to infer that they had consented all along.
Another doomed argument was that by allowing their email address to appear somewhere on the internet (from which their email addresses had been harvested by the defendants) , the recipients had impliedly consented to the use of their addresses to send them spam.
Nicholson J was having none of this and having found them guilty, the court later set the fine at Aus $ 4.5m for Clarity1 and Aus$ 1m for Mr Mansfield.
Why this matters:
Anti spam organisation Spamhaus has claimed that Clarity1 is one of the 20 biggest spammers in the world and if so, it is to be hoped that these penalties will at least give them pause for thought.
It is also of interest that the Australian legislation which brought them low came into force in December 2003, exactly the same month as the UK's own anti spam legislation went live. There the similarities end however as the biggest financial penalty a non compliant emailer has so far suffered in the UK is £270 and £30 costs. And this in a civil action a disappointed email recipient had to finance himself.
So as the Australian public authorities are taking action "pour encourager les autres" and America's FTC is busy doing the same with six figure penalties, our own enforcers have so far imposed zero financial penalties on non compliant emailers.
Hats off then, to the UK's digital marketers, who no doubt by following marketinglaw's guidance since December 2003, have contrived to date to be 100% compliant with all relevant laws. A truly magnificent achievement.