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Based on the facts of the case, the issue that John is facing is the legality of sending mass e-mails to

large mailing lists through a 3rd party provider, and wether he as an individual is liable for any

liability under Australian law. Firstly, under Australian law, SPAM is a term used on the Internet to

refer to unsolicited e-mail and Usenet postings1. These messages are usually intended to entice the

recipient into buying a product or service of some kind or into participating in a get-rich-quick

scheme. SPAM is a world-wide problem as it brings upon a great cost to governments and

organizations around the world and has also been attributed with clogging and slowing down the

internet2. Therefore it comes as no surprise that many countries around the world have drawn up

legislations making it illegal (tougher) to send unsolisited email over the internet. However, even

with the adoption of new laws to combat SPAM, it is difficult if not impossible to regulate a lot of

the SPAM we find here in Australia for the simple reason that the internet is borderless, and

jurisdiction is tricky when it comes to the internet.

In Australia, the legislation that deals with SPAM is the Commonwealth SPAM Act 2003. The main

purpose of this act is to regulate unsolicited commercial e-mail within Australia. According to

section 16(1) of the act, a person must not send, or cause to be sent a commercial message that has

an australian link or is not a designated electronic commercial message. In John's case, the liability

under this section would be limited due to the fact that John was not the actual party which was

responsible for the SPAM. He contracted Internet Impact Advertising (IIA), which was supposed to

help increase revenue through exposure on the internet. John could argue under section 16(3)(b),

that he did not have reasonable information that IIA were spamming as they were vague about their

promotion strategies. However, he still bears the burden of proof in court, section 16(5). Secondly,

in the act, section 18(c) stipulates that all commercial electronic messages must have an opt-out

facility whereby the receipient can easily unsubscribe from this facility. In John's case, many of the
1http://www.brightmail.com/spamstats.html> at 12 september 2008. Brightmail defines spam as
unsolicited bulk email.
2
receipients of the SPAM emailed him back telling him to stop sending SPAM. This to me, indicates

a missing opt-out function or link where the receipent can choose to stop getting those messages.

This in essence is what differentiates SPAM from regular commercial emails. Lastly, John's main

form of liability would arise within the address-harvesting nature that IIA obtained its email mailing

lists. To start, this would be a contravention of section 22(3)(a) which disallows a person from

aiding and abetting in the use of harvested-address lists for purposes of SPAM. Also, the

Commonwealth Privacy Act 1988 stipulates a set of principles known as the National Privacy

Principles (NPP), NPP1 deals with collection of information while NPP2 deals with use and

disclosure. John needs to be wary as section 6A of the act deals with breaches of a national privacy

principle and he may be found liable for that if an individual takes a case against him or complains

directly to the privacy commisioner.

There is also a notion by some that SPAM results in another form of breach, that is using the tort of

trespass, there can be an implied 'trespass to goods'. Basically, it can be argued that through the

process of sending unsolicited email in bulk, there can and will be a diminished level of

performance (regardless how small) while using the internet. This argument was first brought up in

an american case, CompuServe v Cyber Promotions. Although this is an unorthodox method of

obatining legal remedy in Australian courts, there is still the possibility that it may be used for

compensation purposes and therefore needs to be explored.

Furthermore, a great weakness that the Australian legislation has when it comes to combating

SPAM is the opt-in feature versus the opt-out approach adopted in the US. If taken at face-value,

the former strategy would be more effective than the latter, however, in reality, most of Australia's

SPAM originates from North America. This jurisdiction issue over the internet, is one of the main

loop-holes that impede the process of eradicating SPAM as it is sometimes confusing as to the
origin of the email or its destination for that matter.

Due to the recent enactment of the Spam act 2003, there are not many cases which refer to the

SPAM Act in particular. However, there are cases of Spammers in Australia that have been

prosecuted in courts using other laws such as the Corporations Act, Trade Practices Act 1974 and

also the Privacy Act. One such case is that of R v Hourmouzis. The defendant was charged with

sending out a large number of unsolicited emails to a list of email addresses around the world with

the intention of inducing purchase of some US stock. The defendant pleaded guilty and was charged

in breach of the corporations act.

All in all, the SPAM act is an essential tool in combating Australian-originated SPAM, but it is still

imperfect and should be revised as further case law builds on the act. In the case of John, it seems

that he has some issues to address in respect to his liability under the SPAM act; In particular, to the

people in which have been airing their grievinces to him and still keep receiving the unwanted

emails. A possible solution would be to cease using e-mail marketing and switch to another form of

internet advertising, alternatively, as a remedy John may want to offer an apology to those most

affected by the spamming. To obtain information in regards to this matter, the most useful sources

of information was google, for good general information and secondary sources. AUSTLII for

legislation and case material (Primary) as well as Lexis Nexis and AGIS for their journal articles.

The main forms of searches used were Boolean searches that were truncated(*) along with a few

operators such as AND, OR, w/n (within). Most searches were quite easy to structure but produced

too many results. In this context the truncation helped a lot.


Bibliography

Boyarski, Jason R, Fishman, Renee M, Josephberg, Kara et al, 'European authorities consider

cookies and spam' (2002) 14(3) Intellectual Property & Technology Law Journal 31

this article looks at the international stance the worls takes on SPAM and legislative measures that

were implemented to first combat the growing problem.It is relevant to reseacrch because it

provides a look at the liabilities that spammers can face overseas.

Geraci, Danna, 'Spam: opt in if you like' (2001) 34(2) Law-Technology 18.

this article discusses the notion of öpt-in”and does a comparison with opt-out. Both notions are

methods used in Australia and the US. It is relevant because it provides a better understanding as

to how our own Spam act works and its weaknesses.

Hahn, Robert W and Layne-Farrar, Anne, 'The benefits and costs of online privacy legislation'

(2002) 54(1) Administrative Law Review 85

Within this article, the author discuses the freedoms and privacy concerns affected while using the

internet – SPAM is a big concern. The article goes to show how important it is for countries to have

some sort of guidelin or ettiquite if it does not have proper legislation already.

Loomis, Tamara, 'Junk e-mail: filing suit against a spammer is a way to fight back' (2002) 227(69)

New York Law Journal 5.

The author here brings upon an argument on how effectively one can bring and action against a

spammer and the likely argumenst to use in court.

R v Hourmouzis (Unreported, County Court of Victoria, 30 October 2000)


CompuServe Inc v Cyber Promotions [1997] 962 F Supp 1015; [1997] US Dist LEXIS 1997; (1997)

25 Media L Rep 1545

ACCC v Internic Technology Pty Ltd (1998) ATPR 41-646

Spam Act 2003 (Cth)