Analysis: Alston to almost, sort-of, ban spam

Cabinet has approved the introduction of national anti-spam legislation to counter the slew of electronic garbage inundating Australian inboxes. Draft legislation is expected to be made public in around a month and is slated to be put before parliament for the spring sitting later this year.

The new laws will attempt to counter spam originating in Australia through a series of civil sanctions for unlawful conduct. Measures will range from infringement notices, injunctions and enforcement undertakings, to fines in the range of hundreds of thousands, or potentially millions of dollars.

The Australian Communications Authority (ACA) will enforce the legislation, backed by already enacted Privacy laws. In essence, the new legislation will:

-- Ban the sending of commercial electronic messaging without the prior consent of end-users unless there is an existing customer-business relationship (an opt-in regime);

-- Provide civil injunctions and heavy pecuniary penalties for unlawful conduct;

-- Require all commercial electronic messaging to contain accurate details of the sender's name and physical addresses and a functional opt-out facility;

-- Ban distribution and use of e-mail harvesting or list-generating software for the purpose of disseminating spam.

Computerworld understands from a government source that the term "list generating software" is specifically aimed at the range of pre-packaged of 'get-rich-quick' spam generation schemes rather than any specific applications or technology. The source added that such legislation would only apply to cases where there was a clear intent to facilitate the creation of spam and spam lists - and not to common applications such as Outlook or databases.

Notably, the legislation also contains major concessions to the direct marketing industry, who will be allowed to continue to harvest Australian e-mail addresses on .com.au sites on the Internet, essentially for the purpose of business to business marketing.

"The Government will work closely with industry to ensure that Australia has a workable regime without harming legitimate business practices. The regime will seek to protect businesses which undertake legitimate e-mail direct marketing in line with the requirements of the Privacy Act. There will be a 120-day sunrise period without penalties from the enactment of the legislation for businesses to ensure their marketing practices are in line with the legislation" thunders Alston's press release.

This means the new laws will effectively view the posting of any business e-mail addresses on the web by a company as a form of implied consent to receive e-mail offers-by way of participation in the marketplace. Any such offers however, must be "specifically related to employment function" according to the government source.

As such, toner cartridge, mobile phone, cut-rate finance and personal development offers are free to continue until thumped with either a heuristic filter or an opt-out provision. Private e-mail addresses are already regarded as private information by the Privacy commission - if nobody else.

"Spam is a menace to home and business e-mail users and is a major scourge of productivity. Spam e-mails are the mosquitoes of the Internet - numerous, annoying and often carrying nasty viruses," Alston's statement read.

Godammit, it's a swamp out there-and we just got half a paddle.

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