Two companies fined for breaching the Spam Act

No opt out facility for SMS messages

The Australian Communications and Media Authority (ACMA) has fined the Pitch Entertainment Group (Pitch) $11,000 for extensive breaches of the Spam Act.

This is the largest fine imposed by the ACMA to date under the Spam Act 2003.

Pitch and its directors have also entered into an enforceable undertaking that requires future compliance with the Spam Act and contains stringent reporting and staff education obligations.

ACMA found that the Pitch Entertainment Group, which trades as Splash Mobile in Australia, sent over one million commercial electronic messages to mobile phones without a functional unsubscribe facility.

In an unrelated investigation, ACMA has also fined International Machinery Parts Pty Ltd (IMP Mobile) $4,400 for breaches of the Spam Act.

IMP Mobile also failed to provide a functional unsubscribe facility when sending messages to mobile phones.

ACMA chairman, Chris Chapman, said the legislation requires every commercial electronic message to have clear and simple instructions on how consumers can opt out of receiving further messages.

'By not including these instructions, Pitch and IMP Mobile made it difficult for consumers to stop unwanted messages, which is simply an unacceptable circumstance," he said adding that it is important service providers comply with the act.

'All commercial electronic messages must be sent with the recipient's consent, clearly identify who the message was sent by and provide instructions on how to unsubscribe from receiving further messages."

With potential penalties of up to $1.1 million per day imposed by the Federal Court for repeat offenders, Chapman emphasised that non-compliance could prove costly for businesses.

Pitch has advised ACMA that since mid-2006 it has included instructions on how to opt out of receiving its commercial electronic messages, and that it took this action when it became aware of being in breach of the Spam Act.

'While we welcome Pitch's efforts to lift its game, all businesses sending commercial electronic messages must make sure that they and their staff fully understand the requirements of the Spam Act," he said. "In mass marketing campaigns, with their potential to create significant inconvenience, or indeed hardship, on consumers, ignorance of the law is not an acceptable defence.'

The penalty provisions of the Spam Act came into force in 2004.

At that time Australia was tenth in the ranking of spam-relaying countries for e-mail spam.

For the 2006 calendar year, Australian had fallen to twenty-eighth on the list.

In October 2006 a decision was handed down by Justice Nicholson in the Federal Court in Perth to award a pecuniary penalty of $4.5 million against Clarity1 Pty Ltd and $1 million against its managing director, Mr Wayne Mansfield, for contravening the Spam Act.

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