The legislation is in response to a report by the National Office for the Information Economy, released in April this year, which advocated a multi-layered approach to spam prevention.
According to a release from Senator Alston's office, the legislation would:
- Ban the "sending of commercial electronic messages without the prior consent of end-users unless there is an existing customer-business relationship";
- Impose a range of penalties for breaking this law including fines, infringement notices and the ability to seek injunctions;
- Require all commercial electronic messages to include a working opt-out mechanism and the sender's accurate contact details;
- Ban the use of e-mail address harvesting software; and
- Aim to cooperate with overseas organisations to develop international guidelines and mechanisms to battle spam.
The legislation would be enforced by the Australian Communications Authority (ACA).
The legislation would only cover unsolicited e-mail and not other forms of electronic communication, according to a spokesperson for Senator Alston. The government and the ACA have already addressed the issue of unsolicited SMS text messages with an industry code that was registered in June, he added.
"It's not just a single action that's being taken to combat spam, it's a multi-layered approach," said Alston's spokesperson. "You can't just rely on the legislation alone."
End-users also had a part to play in spam prevention, Alston's spokesperson said. "Obviously, people themselves have to look at taking action. There's increasingly effective filter products that are available to trap this sort of stuff before it arrives in your inbox."
The government stressed its commitment not to harm legitimate e-mail direct marketing as long as it was "in line with the requirements of the Privacy Act".
However, the Australian Direct Marketing Association (ADMA) is concerned the legislation may adversely affect many local small and medium-sized businesses who use e-mail as a legitimate marketing tool.
"This is an issue where if they get it wrong could have a huge impact on business, particularly small businesses," said Jodie Sangster, the ADMA's manager of legal and regulatory affairs. "For that reason, it's in the government's interest to make sure they fully consult and take into account the businesses it's going to impact on."
The government has committed to work with the ADMA and other relevant industry organisations such as the Internet Industry Association to develop a workable system, Alston's spokesperson said. However, "Businesses would also be aware of the need not to harass people with this sort of material," he added. The government would also "work with the industry to develop relevant codes of practice" which would be registered with the ACA, according to the statement.
The legislation would include a 120-day "sunrise period" after it was enacted to allow businesses to ensure their practices were in line with its requirements.
The legislation would only be able to directly affect spam originating from Australian companies. According to a survey conducted in June by spam filtering company Messagecare, only 0.5 percent of all spam received by Australian e-mail users originates in Australia.
However, Alston's spokesperson hastened to add that the government would be working with its international counterparts as part of a global anti-spam effort.
"[The legislation] is looking at all spam sent no matter where its source," he said. "We've been very focused for some months now on conducting negotiations with overseas countries to introduce complementary legislation or parallel legislation that's going to have a similar effect."
Asked whether countries that are not renowned for international cooperation on issues such as human rights or nuclear non-proliferation were likely to be interested in working with Western governments on the spam issue, Alston's spokesperson said "we'll certainly be doing our best to ensure that they do."
There is currently a bill being debated in a US House of Representatives subcommittee on banning fraudulent and pornographic spam and several US states have enacted their own anti-spam laws. By introducing laws of a more ambitious scope, Australia was "definitely taking a leadership position on this issue," Alston's spokesperson said.
"No commercial electronic messaging to be sent without the prior consent of the end user unless there is an existing customer-business relationship;"
From what I understand from this it would mean that in order to send an email to a person that I don't have an existing relationship with I would have to -
1. Send them an email to get their permission to send an email to them.
2. Send them the email.
This sounds crazy!
Every day I receive about 2 or 3 phone calls from companies trying to sell me telephone or other services. Where is the legislation to deal with this?