The Australian Communications and Media Authority (ACMA) has imposed a major fine on Optus for sending thousands of unsolicited and anonymous text messages. Optus were fined under the Spam Act for not providing sufficient identification of origin on text message that were sent out to 20,000 customers. Optus tried to negotiate their way out of the penalty but failed and now face a substantial $110,000 fine for two related offences.
ACMA issued the two infringement notices to Optus for failing to provide clear and accurate sender identification with SMS promotions. The messages promoted the OptusZoo entertainment service to mobile phones with the sender identification of ‘966’. ACMA chair Chris Chapman did not accept Optus's assumption that message recipients would make the connection between the keypad letters of Zoo and 966. “This was not considered sufficient identification, as 966 could be used to represent any number of permutations on a telephone keypad,” he said. He went on to warn companies considering similar shonky schemes that “ensuring spam compliance procedures are understood by all staff is imperative for all businesses if they want to avoid the risk of costly fines.”
The fines are mandated by the 2003 Spam Act (pdf) which regulates unsolicited commercial electronic messages such as emails, SMS messages, MMS messages and instant messaging. The act imposes three key obligations on businesses that send electronic messages. They must firstly only send messages with the implied or explicit consent of customers, secondly they must include clear and accurate information about the identification of the sender and finally they must include an “unsubscribe” function in all messages. Unlike the weak ‘opt out’ US CAN-SPAM Act (message recipients had to ask the sender not to send future messages), the Australian legislation was ‘opt in’. Only charities, religious organisations, political parties and the Government are exempt from the law. The downside is that is has no jurisdiction over foreign spammers.
Yet if ACMA are to be believed, the Act has been successful in significantly reducing locally-generated spam. They say that at the time the penalty provisions of the Act were introduced (2004) Australia was 10th in the ranking of spam-relaying countries. However by end 2007, Australia had fallen to 35th. The biggest offender against the Act so far has been DC Marketing Europe Limited which copped a $150,000 fine for contraventions relating to missed call marketing (short duration calls which deliberately leave a ‘missed call message’ to entice callers to ring back) in 2006. DC Marketing breached the Spam Act on all three counts; sending unsolicited messages, not identifying the sender and not containing an unsubscribe facility. While it is arguable that Optus also failed under the first of these requirements, ACMA charged them over the second requirement. The problem is that spam remains an attractive business proposition despite the high penalties. “Eliminating spam is a war you cannot win," according to one computer security expert. "It is much cheaper to send spam than stop it.”
Nonetheless the best tactic for consumers inundated with unwanted corporate pap is to ignore it. An Optus customer who did not want to be identified told Woolly Days he had gotten the spam emails that incurred the wrath of ACMA. He said the “966” texts could be identified as coming from Optus as the term "optuszoo" did appear in the actual text. However, he added, "like all other unsolicited text I receive, I just disregard them."