Electronic Frontiers Australia has trenchantly criticised the Australian federal “anti-spam” bill, a phrase EFA insists on putting in quotation marks. The proposed legislation is not really an anti-spam measure, says the online freedoms and rights lobby. In its present form, it both permits some messages most people would classify as spam and prohibits some “unsolicited commercial emails” such as job offers in response to a published CV, which the recipient would no doubt wish to receive.
The Australian government wants to exempt its own emails and those of political parties and religions from being considered spam, as well as any messages with “factual information”, albeit that they may contain added “comment” and information on the identity of the sender, including a company logo. Such “designated” messages would also be exempt from the requirement to have an “unsubscribe” facility, whereby the recipient can tell the sender not to send further similar messages.
The bill’s “explanatory memorandum” (EM) states that the exemption permitting political and religious bodies to send unsolicited commercial messages “aims to ensure that there is no unintended restriction on government-to-citizen or government-to-business communication, nor any restriction on religious or political speech”.
"While the stated aim may have some legitimacy, the exemption is absurdly broad and is apparently completely unnecessary,” the EFA says.
“The exception would, for example, enable government agencies to shift the cost of providing services to their "clients" (that is, citizens) from the agency to the recipient. The Australian Tax Office, for example, could send huge files containing the latest GST Booklet, or Annual Tax Guide, resulting in the recipient being forced to pay the cost of receiving it in their internet access fees.
“No persons or organisations that send commercial electronic messages in bulk (whether "designated" spam or not) should be exempt from the requirement to provide a functioning unsubscribe facility,” says the EFA.
The exemption for messages containing “factual information” is described by the EFA as “large enough to drive a truck through”.
Spammers will have no difficulty writing a paragraph containing “factual information” and following it with permitted “comment” and identifiers which amount to a commercial pitch, says the association.
By contrast, it says, an individual seeking work may publish their resume on their personal website.
“Another person or organisation/company wishes to email the individual to offer a business opportunity -- for example, a contract for work that is directly relevant to the experience and skills set out in the individual's resume.” As the proposed law stands, they would be prohibited from doing so.
Similarly, a publisher might read an author’s work and wish to ask for paid republication rights or even commission new work; again an email to the writer risks being considered "spam".
The EFA says the proposed law should be amended to either:
- exclude its application to the sending of a single message (that is, apply only to messages that have a "bulk" aspect); or
- [change] the definition of inferred consent to provide for a circumstance where there is no prior relationship but consent can be inferred to the receipt of a particular type of message from the conduct of the individual or organisation … or
- [change] the exception in relation to "conspicuous publication" [of contact information] to provide for circumstances where an individual has published their personal electronic address on their personal website and having regard to the information published on their website, it is obvious to the average person that the individual would not regard a particular and directly relevant "commercial electronic message" sent specifically and only to them as spam”.
Such exemptions would need to be very carefully phrased, the EFA concedes.