"At this point in time we have no way of knowing who is compliant," said John Haydon, executive manager of the consumer and USO group at the Australian Communications Authority (ACA), the government agency charged with enforcing the legislation.
Speaking at the forum, organised by antivirus and antispam software vendor Sophos, Haydon said "There is an intuitive appeal to think that the majority are and the source of spam is a minority."
The ACA has not yet identified any companies that might be prosecuted under the legislation at the end of the 120-day amnesty on April 10, he added.
Some in the legal profession are less optimistic. "I don't think most Australian businesses are compliant with the act," said Patrick Fair, partner at law firm Baker & McKenzie. "I think the marketing messages in ordinary e-mail [signatures] now requires the inclusion of an unsubscribe facility. To the extent that Australian businesses include commercial communications at the end of their everyday e-mail, that's a compliance issue."
This could be as simple as including a message such as "20 percent off this week" at the end of regular e-mails. The way the Act has been framed includes not only bulk e-mail, but any e-mail that contains commercial content.
"The legislation is targeted at spam, but in the process it will raise the bar generally" for commercial e-mail practices, said Linsday Barton, manager of online policy at the National Office for the Information Economy. While most people understand spam to be bulk e-mail, "the government has decided not to include that approach and take every message as potential spam even if it's a single message," said Fair. "That does require a lot of attention from business and does require legal advice."
However, Fair denied he was spruiking for business on behalf of the legal community. "In the scale of commercial legal work it's a service to our clients rather than a money-making exercise," he said. Haydon did not comment on how likely the ACA was to prosecute a business for adding commercial messages at the end of their everyday e-mails.
The legislation sets up a distinction between "designated commercial messages" -- that require consent of the recipient (express or in some cases implied), the sender to be identified, and the recipient to be given the opportunity to unsubscribe -- and "designated electronic messages" that can be sent without consent as long as they contain factual, non-commercial content and identify the sender.
Designated electronic messages were designed to allow political organisations, community groups, and the like to send messages to their constituents without falling afoul of the Spam Act. However, it will be "one of the tests of the legislation if people feel they are allowed to send factual messages," Fair added.
This definition may provide a loophole that would allow some carefully worded spam through. For example, a technique currently used by the pharmaceuticals industry in broadcast advertising to circumvent its advertising regulations could also apply to spam. Pharmaceutical companies currently run TV and radio advertisements informing consumers that certain types of products, such as weight loss pills or erectile dysfunction cures, are available, and encouraging the audience to visit a doctor to find out more. These advertisements also include the name of the company sponsoring them. A spam message along similar lines would most likely fall under the definition of a designated electronic message, said Fair. "It's a very strange little exception," he added.
While Barton agreed such messages would be "borderline" in terms of legality, he stressed that the government and the ACA would be encouraging industry codes of practice that would steer clear of such legal grey areas.
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