First Spammer Prosecuted Under Australia's 2003 Spam Act

by Mary Swire, for LawAndTax-News.com, Hong Kong

19 April 2006

The Australian Communications and Media Authority last week welcomed the decision of Justice Nicholson in the Federal Court in Perth concerning the contraventions of the Spam Act 2003 (Spam Act) by Clarity1 Pty Ltd of Perth and Wayne Mansfield, its managing director.

ACMA’s prosecution of Clarity1 is especially significant, as it represents the first prosecution under the Spam Act.

Among other matters, ACMA submitted to the Federal Court that in the twelve months after the Spam Act commenced in April 2004, Clarity1 Pty Ltd and Mr Mansfield sent out at least 56 million commercial emails with most of the messages being unsolicited and in breach of the Spam Act.

Justice Nicholson on Thursday rejected the company’s defence that the recipients of emails had consented to receive them. He further rejected the defence that the company could use harvested lists acquired before the Spam Act commenced to send Spam emails at any time.

"The fact that address-harvesting may have occurred at a time when no such prohibition was in the law, does not prevent the application of the provision in its term from the date it came into force," he observed.

Welcoming the verdict, ACMA Chairman, Chris Chapman announced that:

"This has been an important test case for the Spam Act. Justice Nicholson’s findings should give Australians confidence in the effectiveness of this important legislation."

He continued:

"The receipt of spam imposes significant cost and inconvenience on individuals and businesses by disrupting email delivery, clogging up computer systems, reducing productivity, wasting time, irritating users and raising the cost of internet access fees."

"This case provides a strong indication to Australian spammers that their activities will be vigorously pursued by ACMA."

The Federal Court has advised that the determination of penalties will be made at a later date.

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