The Australian Communications and Media Authority (ACMA) has fined two companies a total of $13,200 for breaches of the Spam Act.
Infringement notices were issued by ACMA to Queensland-based Global Racing Group, with penalties of $11,000 for sending unsolicited, commercial SMS messages in breach of the Spam Act. The authority found the company arranged for the messages to be sent in a series of campaigns targeting Australian mobile numbers between June and December 2004.
A second company, Australian SMS, was fined $2200 by ACMA for breaching the Spam Act and has given the authority an enforceable undertaking to abide by the Spam Act and the Australian e-marketing industry code of practice. Australian SMS is a specialist SMS messaging company, also Queensland-based, which Global Racing Group contracted to send the messages.
According to the authority, the companies sent out, via an offshore third-party, more than 50,000 commercial SMS messages marketing an investment scheme in software which provided horseracing tips.
The ACMA took action in response to complaints from the public.
Lyn Maddock, acting ACMA chair, said SMS spam is not exempt from the provisions of the Spam Act and is often perceived as more intrusive than e-mail spam. The involvement of a third-party located offshore did not mean the provisions of the Act could be circumvented, Maddock said.
"The overseas operator was engaged by Australian SMS to physically send the messages," she said.
"However, even though the actual sending of the messages occurred outside Australia, the 'Australian link' provision of the Act still applied because companies [based] in Australia authorized the messages to be sent and the messages were received in Australia."
Both companies have since indicated to the ACMA their practices have changed to comply with the Spam Act.
Maddock said all businesses are required to comply with the Spam Act, no matter how large or small their marketing activities. The Spam Act requires that commercial electronic messages only be sent with consent, that they include accurate identifying information about the sender and that they include a functional, unsubscribe facility.
Since the Spam Act came into force in April 2004, ACMA has required 200 businesses to amend their practices to comply with the Act. Fines totalling more than $20,000 have been issued to five businesses; three businesses have provided enforceable undertakings, and court action is being taken against an alleged global spammer in the Federal Court in Perth.