(2)  Column 3 of the table contains additional information that is not part of this Act. In September 2012, the Australian Communications and Media Authority (ACMA) issued formal warnings to two Australian businesses for their failure to comply with the Spam Act 2003 (Cth) (the Act).This serves as a timely reminder to Direct Selling Organisations (DSOs) to ensure that the electronic messages they (and their salesforces) send comply with the Act. In March 2006, the FTC obtained its largest settlement to date - a $900,000 consent decree against Jumpstart Technologies, LLC for numerous alleged violations of the CAN-SPAM act. (7)  The regulations may provide that a specified kind of electronic message is not a commercial electronic message for the purposes of this Act. Congress determined that the US government was showing an increased interest in the regulation of commercial electronic mail nationally, that those who send commercial e-mails should not mislead recipients over the source or content of them, and that all recipients of such emails have a right to decline them. This Act establishes requirements for those who send unsolicited commercial email. Legislation history and amendment history—Endnotes 3 and 4. If a user opts out, a sender has ten days to cease sending and can use that email address only for compliance purposes. (2)  For the purposes of paragraphs (1)(d) to (l), it is immaterial whether the goods, services, land, interest or opportunity exists. 108-102 (2003), at 21-22. 1) 2016. This Act may be cited as the Spam Act 2003. Many anti-spammers have taken a stance against this law claiming that it is a failed attempt at really regulating spam within the United States and is too weak to really halt the sending of spam. However, there are broad exemptions. Message must not be sent to a non‑existent electronic address. (1)  A person must not send, or cause to be sent, a commercial electronic message that has an Australian link unless: (a)  the message clearly and accurately identifies the individual or organisation who authorised the sending of the message; and, (b)  the message includes accurate information about how the recipient can readily contact that individual or organisation; and, (c)  that information complies with the condition or conditions (if any) specified in the regulations; and. If you are forthcoming, honest and transparent with the information that you are communicating – with actions taken to protect privacy and time, consumers will respond in kind. (a)  when used in relation to goods or services—has the same meaning as in the Competition and Consumer Act 2010; or, (b)  when used in relation to land—includes transfer; or. (3)  An application under subsection (1) may be made at any time within 6 years after the contravention concerned. The Commission began this rulemaking process as directed by Congress in the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. (3)  Subsection (1) does not apply if the supplier: (c)  an individual who was physically present in Australia at the time of the supply or offer; or. Sending of electronic messages--carriage service providers 10.Continuity of partnerships 11. (d)  the relevant electronic account‑holder, or a user of the relevant account, sends the individual or organisation: (i)  a message to the effect that the account‑holder does not want to receive any further commercial electronic messages at that electronic address from or authorised by that individual or organisation; or. (b)  if it appears to the Court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing. Sections 1 and 2 and anything in this Act not elsewhere covered by this table. Commonwealth.[10]. The bill, known as the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (or “CAN-SPAM Act”), preempts many provisions of existing state (3)  The protection in subsection (2) does not apply to an authority of the Crown. Spam Act 2003 (Cth) The Spam Act prohibits businesses from sending unsolicited commercial electronic messages and provides them with rules for sending legitimate ones. Note:          Part 4 provides for pecuniary penalties for breaches of civil penalty provisions. Under the Spam Act, an electronic message includes messages sent using an internet ‘carriage service’. (8)  An expression used in paragraph (1)(m) of this section and in section 134.1 of the Criminal Code has the same meaning in that paragraph as it has in that section. On December 20, 2005 the FTC reported that the volume of spam has begun to level off, and due to enhanced anti-spam technologies, less was reaching consumer inboxes. (1)  This clause applies if an infringement notice is given to a person. The Commission began this rulemaking process as directed by Congress in the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). '(4) OTHER TERMS- Any other term has the meaning given that term by section 3 of the CAN-SPAM Act of 2003.'. (1)  The ACMA may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 24. Copy of the official CAN-SPAM Act of 2003 [108th Congress Public Law 187] [From the U.S. Government Printing Office] [DOCID: f:publ187.108] [[Page 117 STAT. (2)  Subsection (1) is enacted for the avoidance of doubt. (e)  if the Court considers that it is appropriate to do so—whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct. (a)  a particular electronic address enables the public, or a section of the public, to send electronic messages to: (ii)  a particular director or officer of an organisation; or, (iii)  a particular partner in a partnership; or, (iv)  a particular holder of a statutory or other office; or, (v)  a particular self‑employed individual; or, (vi)  an individual from time to time holding, occupying or performing the duties of, a particular office or position within the operations of an organisation; or, (vii)  an individual, or a group of individuals, from time to time performing a particular function, or fulfilling a particular role, within the operations of an organisation; and, (b)  the electronic address has been conspicuously published; and. Electronic messages 6. A significant decrease in sexually explicit e-mail was also reported.[5]. A visible and operable unsubscribe mechanism is present in all emails. 44  Implied freedom of political communication. Note 2:       For Australian link, see section 7. Commercial electronic messages 7. (p)  a purpose specified in the regulations. (2)  This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. electronic message has the meaning given by section 5. employee includes an individual who is in the service of an armed force, a police force or a religious organisation. CAN-SPAM The CAN-SPAM Act. (a)  the sending of the message is authorised by an educational institution; and. The Act restricts spam, especially e-mail spam and some types of phone spam, as well as e-mail address harvesting. Note:          Subsection 2C(1) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual. In the race to get their business up and their content marketing out in front of people, many Australian small business owners don’t realise they are breaking a long-standing piece of law – the Spam Act of 2003.. internet carriage service means a listed carriage service that enables end‑users to access the internet. After pleading guilty, he was sentenced in a closed session.[28][29]. The Act bans false or misleading header information and prohibits deceptive subject lines. The following is a simplified outline of this Act: •      This Act sets up a scheme for regulating commercial email and other types of commercial electronic messages. R411008", "COMMENTS of the DIRECT MARKETING ASSOCIATION, INC. Note 1:       For unsubscribe message, see subsection (8). (a)  aid, abet, counsel or procure a contravention of subsection (1); or, (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or, (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or. The Spam Act 2003 (Cth) is an Act passed by the Australian Parliament in 2003 to regulate commercial e-mail and other types of commercial electronic messages. (b)  a law of a State or Territory that deals with electoral matters. [15] But when sending unsolicited commercial emails, it must be stated that the email is an advertisement or a marketing solicitation. (d)  contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within: (i)  28 days after the notice is given; or, (ii)  if the ACMA allows a longer period—that longer period; and, (e)  give an explanation of how payment of the penalty is to be made; and. (c)  in any other case—the place where the message was delivered. Later modifications changed the original CAN-SPAM Act of 2003 by (1) Adding a definition of the term "person"; (2) Modifying the term "sender"; (3) Clarifying that a sender may comply with the act by including a post office box or private mailbox; and (4) Clarifying that to submit a valid opt-out request, a recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any other steps other than sending a reply email message or visiting a single page on an Internet website. When consent may be inferred from publication of an electronic address. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. (1)  For the purposes of this Act (including subsection (2)), if: (a)  an individual authorises the sending of an electronic message; and. [37] On March 6, 2006 Jennifer R. Clason, 33, of Raymond, New Hampshire, pled guilty and was to be sentenced on June 5, 2006. 27  Criminal proceedings not to be brought for contravention of civil penalty provisions. Spam Act 2003. APC Entertainment, Inc.,[45] of Davie, Florida, [23][24] Internet activists who work to stop spam stated that the Act would not prevent any spam — in fact, it appeared to give federal approval to the practice, and it was feared that spam would increase as a result of the law. Discharge etc. Using various email accounts obtained by falsifying account registration information, in order to send multiple spam emails. (2)  In determining whether a person (the victim) has suffered loss or damage as a result of one or more contraventions by another person of section 16 in relation to the sending of one or more commercial electronic messages, and in assessing the amount of compensation payable, the Court may have regard to the following: (a)  the extent to which any expenses incurred by the victim are attributable to dealing with the messages; (b)  the effect of dealing with the messages on the victim’s ability to carry on business or other activities; (c)  any damage to the reputation of the victim’s business that is attributable to dealing with the messages; (d)  any loss of business opportunities suffered by the victim as a result of dealing with the messages; (e)  any other matters that the Court considers relevant. (2)  Subsection (1) does not apply if the person: (3)  Subsection (1) does not apply if the person sent the message, or caused the message to be sent, by mistake. (d)  that information is reasonably likely to be valid for at least 30 days after the message is sent. [16], Use of automated means to register for multiple e-mail accounts from which to send spam compound other violations. Note:          The Telecommunications Act 1997 contains additional provisions about commercial electronic messages. The Spam Act 2003 prohibits the sending of unsolicited commercial electronic messages with an Australian link. Part 3—Rules about address‑harvesting software and harvested‑address lists, 20  Address‑harvesting software and harvested‑address lists must not be supplied. (b)  a collection of electronic addresses; or. The object of this Schedule is to define the expression consent, when used in relation to the sending of an electronic message. [27], On February 16, 2005, Anthony Greco, 18, of Cheektowaga, New York, was the first person to be arrested under the CAN-SPAM Act of 2003. infringement notice means an infringement notice under clause 3. Regulations....................................................................................... means the Australian Communications and Media Authority. The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003 was signed into law by President George W. Bush on December 16, 2003. § 7701 (a) (11); S. Rep. No. Those opposing spam greeted the new law with dismay and disappointment, almost immediately dubbing it the "You Can Spam" Act. Fraud and related activity in connection with electronic mail. (b)  an agreement between Australia and a foreign country. The Spam Act 2003 (Cth) is an Act passed by the Australian Parliament in 2003 to regulate commercial e-mail and other types of commercial electronic messages. The Spam Act makes no reference to bulk messaging - a single unsolicited commercial electronic message could be spam. (b)  a member of the staff of the ACMA appointed under clause 9. civil contravention means a contravention of a civil penalty provision. (1)  For the purposes of this Act, the consent of the relevant electronic account‑holder may not be inferred from the mere fact that the relevant electronic address has been published. THE SPAM ACT 2003 Electronic messaging is an important means for business promotion as it allows simple and low cost communication. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia. (1)  For the purposes of this Act, a person does not send an electronic message, or cause an electronic message to be sent, merely because the person supplies a carriage service that enables the message to be sent. The law requires the Federal Trade Commission (FTC) to enforce its provisions. (9)  For the purposes of the application of this section to a commercial electronic message, where the sending of the message is authorised by an individual or organisation, an unsubscribe message is: (a)  an electronic message to the effect that the relevant electronic account‑holder does not want to receive any further commercial electronic messages from or authorised by that individual or organisation; or. an "opt-out"). (b)  if the Federal Court finds that the body corporate has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the body corporate in respect of those contraventions must not exceed: (i)  if the civil penalty provision is subsection 16(1), (6) or (9)—2,000 penalty units; or. CAN-SPAM Act of 2003 is an acronym which stands for: Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. The CAN-SPAM Act is occasionally referred to by critics as the "You-Can-Spam" Act because the bill fails to prohibit many types of e-mail spam and preempts some state laws that would otherwise have provided victims with practical means of redress. (b)  the individual does so on behalf of an organisation; (c)  the organisation is taken to authorise the sending of the electronic message; and. See 15 U.S.C. (7)  Subsections (1) and (5) are civil penalty provisions. 29  Ancillary orders—recovery of financial benefit, (a)  in one or more proceedings under section 26, the Federal Court finds that a person has contravened one or more civil penalty provisions; and. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Regulations....................................................................................... 52, Endnotes                                                                                                                                    53, Endnote 1—About the endnotes                                                                            53, Endnote 2—Abbreviation key                                                                                55, Endnote 3—Legislation history                                                                             56, Endnote 4—Amendment history                                                                           58, An Act about spam, and for related purposes. (a)  when used in relation to goods or services—has the same meaning as in the, (5)  If a message is sent by way of a voice call made using a standard telephone service, the message is not an, (7)  The regulations may provide that a specified kind of electronic message is not a, (8)  An expression used in paragraph (1)(m) of this section and in section 134.1 of the, (9)  An expression used in paragraph (1)(n) of this section and in section 134.2 of the, (10)  An expression used in paragraph (1)(o) of this section and in section 135.1 of the, For the purposes of this Act, a commercial electronic message has an, Authorising the sending of electronic messages, Sending of electronic messages—carriage service providers, (1)  For the purposes of this Act, a person does not, Unless the contrary intention appears, a reference in this Act to the, Rules about sending commercial electronic messages, Unsolicited commercial electronic messages must not be sent, Commercial electronic messages must include accurate sender information, Commercial electronic messages must contain a functional unsubscribe facility, (9)  For the purposes of the application of this section to a commercial electronic message, where the sending of the message is authorised by an individual or organisation, an, Rules about address‑harvesting software and harvested‑address lists, Address‑harvesting software and harvested‑address lists must not be supplied, Address‑harvesting software and harvested‑address lists must not be acquired, Address‑harvesting software and harvested‑address lists must not be used, Pecuniary penalties for contravention of civil penalty provisions, Maximum penalties for contravention of civil penalty provisions, then, for the purposes of determining the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision that occurs after the first day, the person has a, Civil action for recovery of pecuniary penalties, Criminal proceedings not to be brought for contravention of civil penalty provisions, (a)  in one or more proceedings under section 26, the Federal Court finds that a person (the, (b)  the Court is satisfied that another person (the, (2)  In determining whether a person (the, Ancillary orders—recovery of financial benefit, Certain limits on granting injunctions not to apply, Other powers of the Federal Court unaffected, Assessment of compensation for breach of undertaking, (2)  In determining whether another person (the, Formal warnings—breach of civil penalty provision, Implied freedom of political communication, Giving effect to international conventions, Designated commercial electronic messages, The object of this Schedule is to define the expression, (1)  For the purposes of this Act, an electronic message is a, (a)  the message consists of no more than factual information, Government bodies, political parties and charities, For the purposes of this Act, an electronic message is a, The regulations may provide that a specified kind of electronic message is a, Users of account authorised to consent on behalf of relevant electronic account‑holder, When consent may be inferred from publication of an electronic address, (f)  if the message referred to in paragraph (d) was sent by post—the day on which service of the message was effected (see section 29 of the, (2)  For the purposes of subclause (1), a. means a contravention of a civil penalty provision. (6)  Subsection (1) has effect subject to subsection (7). The object of this Schedule is to set up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of proceedings in the Federal Court. (d)  the individual is taken not to authorise the sending of the electronic message. (c)  declare that a specified provision of the regulations is a civil penalty provision for the purposes of this Act. (1)  For the purposes of this Act, if a person other than the relevant electronic account‑holder uses the relevant account to send an electronic message about: that person is taken to have been authorised to send that message on behalf of the relevant electronic account‑holder. [22] The FTC has limited these bounties to individuals with inside information. listed carriage service has the same meaning as in the Telecommunications Act 1997. Jeffrey A. Kilbride, 41, of Venice, California, and James R. Schaffer, 41, of Paradise Valley, Arizona, were convicted on eight counts in U.S. District Court in Phoenix, Arizona. Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. See 15 U.S.C. After a 2½ day trial, the jury retired to determine whether Impulse Media should be held liable for the bad acts of its affiliates. Maximum penalties for contravention of civil penalty provisions..... 26.......... Civil action for recovery of pecuniary penalties................................ 27.......... Criminal proceedings not to be brought for contravention of civil penalty provisions. The CAN-SPAM Act of 2003 was created to protect consumers from unsolicited emails from brands and businesses. The Spam Act 2003 (Spam Act) regulates the sending of commercial electronic messages (CEMs) and prohibits the sending of these messages except in certain limited circumstances. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia. If you’re having a problem with a spammer based in Australia, it’s possible they’re breaking laws under the Spam Act 2003 (Spam Act), which the Australian Communications and Media Authority (ACMA) manages. carriage service has the same meaning as in the Telecommunications Act 1997. civil penalty provision means any of the following provisions: (g)  a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 45(2)(c). An Act to regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet. (c)  a compilation of electronic addresses; where the production of the list, collection or compilation is, to any extent, directly or indirectly attributable to the use of address‑harvesting software. PO Box addresses are acceptable in compliance with. MD Media, Inc.,[46] of Bingham Farms, Michigan, The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. (c)  when used in relation to an interest in land—includes transfer or create. (b)  if the Federal Court finds that the person has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the person in respect of those contraventions must not exceed: (i)  if the civil penalty provision is subsection 16(1), (6) or (9)—400 penalty units; or. (2)  An infringement notice must be given within 12 months after the day on which the civil contraventions are alleged to have taken place. The Can Spam Act of 2003 is a commonly used name for the United States Federal law more formally known as S. 877 or the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003." The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Defendants were charged with sending hundreds of thousands of spam emails advertising a "diet patch" and "hormone products." (5)  If a message is sent by way of a voice call made using a standard telephone service, the message is not an electronic message for the purposes of this Act. [19] The relevant portion of CAN-SPAM reads: Though this move was criticized by some anti-spam activists, some legal commentators praised it, citing a heavily punitive California law seen as over broad and a wave of allegedly dubious suits filed in Utah.[20]. The legislation prohibits e-mail recipients from suing spammers or filing class-action lawsuits. . [51][52], The Department of Justice asserted that the CAN-SPAM statute imposed strict-liability on producers such as Impulse Media for the actions of its non-agent, independent-contractor affiliates. Criminal charges were filed by the United States Attorney for the Eastern District of Michigan, and the FTC filed a civil enforcement action in the Northern District of Illinois. 108-187/S.877 that established the first national standard for the dissemination of commercial email and designated the Federal Trade Commission to enforce the provisions of the law. •      Commercial electronic messages must contain a functional unsubscribe facility. Note:          For treatment of partnerships, see section 585 of the Telecommunications Act 1997. Nevertheless, the increasing volume of Spam, has interfered with the efficiency of electronic messaging. The Spam Act 2003 (Cth) is an Act passed by the Australian Parliament in 2003 to regulate commercial e-mail and other types of commercial electronic messages. History. For more information about any editorial changes made in this compilation, see the endnotes. (d)  conspire with others to effect a contravention of subsection (1) or (6). (ii)  in any other case—200 penalty units. (f)  whether in any combination of forms. (1)  For the purposes of this Act, an electronic message is a designated commercial electronic message if: (a)  the message consists of no more than factual information (with or without directly‑related comment) and any or all of the following additional information: (i)  the name, logo and contact details of the individual or organisation who authorised the sending of the message; (ii)  the name and contact details of the author; (iii)  if the author is an employee—the name, logo and contact details of the author’s employer; (iv)  if the author is a partner in a partnership—the name, logo and contact details of the partnership; (v)  if the author is a director or officer of an organisation—the name, logo and contact details of the organisation; (vi)  if the message is sponsored—the name, logo and contact details of the sponsor; (vii)  information required to be included by section 17; (viii)  information that would have been required to be included by section 18 if that section had applied to the message; and, (b)  assuming that none of that additional information had been included in the message, the message would not have been a commercial electronic message; and. Avoid sending spam If you send or have someone else send out your marketing emails or messages, you need to know about spam laws. (1)  If the ACMA considers that a person who gave an undertaking under section 38 has breached any of its terms, the ACMA may apply to the Federal Court for an order under subsection (2). (1)  The ACMA may accept a written undertaking given by a person for the purposes of this section in connection with a matter relating to: (2)  The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA. (7)  A person does not contravene subsection (6) merely because the person supplies a carriage service that enables an electronic message to be sent. Note 3:       For designated commercial electronic message, see Schedule 1. , when used in relation to the sending of an electronic message, has a meaning affected by section 8. includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis. These are programs which work with your email package to sift through new emails, separating spam emails from wanted emails and blocking them. CAN-SPAM Act of 2003 (and its 2008 updates). (2)  The Federal Court is not to require an applicant for an injunction under section 32, as a condition of granting an interim injunction, to give any undertakings as to damages. Advertising organizations such as the Data & Marketing Association (DMA) have sought to weaken implementation of the law in various ways. [34], As of late 2006, CAN-SPAM has been all but ignored by spammers. Australia, when used in a geographical sense, includes the external Territories.
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