Optus stung by ACMA for breach of spam laws
Australia’s second largest telecommunications provider, Optus Mobile Pty Ltd, Optus Internet Pty Limited and Optus ADSL Pty Limited (Optus) has paid a $504,000 infringement notice after being found by the Australian Communications and Media Authority (ACMA) to have committed significant breaches of Spam laws.
Background
The ACMA found Optus sent SMS and email marketing emails to approximately 750,000 consumers after they had already unsubscribed from receiving marketing texts and emails from Optus and also sent billing notices which did not have an unsubscribe facility.
On 11 November 2019, the ACMA notified Optus that the ACMA has reasonable grounds to believe that, between 1 June and 4 December 2018 (inclusive), Optus sent or caused to be sent commercial electronic messages:
(a) without the consent of the relevant electronic account holder, in contravention of subsection 16(1) of the Spam Act; and/or
(b) that did not contain a functional unsubscribe facility, in contravention of subsection 18(1) of the Spam Act.
In addition to the $504,000 fine, the ACMA accepted a court enforceable undertaking in which Optus will appoint an independent consultant to review its systems, policies and procedures. The undertaking was imposed to significantly reduce the risk of ongoing non-compliance. The ACMA will be actively monitoring Optus’ compliance with its commitments. and will consider court action if they are not met.
Historically the fines imposed for breaches of spam laws have been modest. Although the ACMA generally takes a consultative approach with businesses, this is the largest infringement notice ever paid for spam and is indicative of the ACMA becoming increasingly active and more willing to use more forceful powers to compel compliance with spam laws. It follows a trend in recent years of Australian regulators taking a more proactive approach to enforcement.
Spam Laws
Australian spam laws were introduced in 2003 under the Spam Act 2003 (Cth) (Spam Act) and covers email, mobile phone messages (SMS, MMS) and instant messaging. The Spam Act is enforced by the ACMA. Under the Spam Act, it is illegal to send spam, which is defined as ‘unsolicited commercial electronic messaging’.
The Spam Act, the Do Not Call Register Act 2006 and the Privacy Act 1988 (Cth) contain specific provisions regarding direct marketing.
The Australian Communications and Media Authority (ACMA)
The ACMA is Australia’s regulator for broadcasting, radio, telecommunications and certain online content.
The ACMA has regulatory powers to investigate and take action against businesses and individuals in broadcasting (including radio and television) and telecommunications. These powers are granted primarily under the Australian Communication and Media Authority Act 2005 (Cth), the Broadcasting Services Act 1992 (Cth), the Telecommunications Act 1997 (Cth) and the Do Not Call Register Act 2009 (Cth).
Where the ACMA finds contraventions of the law, it can take action in the following ways:
§ issue a formal warning;
§ give an infringement notice;
§ accept court-enforceable undertakings; and
§ take the matter to the Federal Court, which can impose significant penalties.
What this means for your business
If you or someone else in your business sends out commercial emails or messages, you need to know about spam laws, what your responsibilities are and how to comply.
Before sending any commercial messages or emails such as marketing messages/emails, you must first obtain permission (either express or inferred) from the person who will receive them. After obtaining permission, you must ensure that your message identifies you as the sender, contains your correct contact details and makes it easy to unsubscribe.
If you have any questions or wish to discuss this article further, don't hesitate to contact us.
Marissa Goff
Senior Lawyer