Spam is a term generally associated with the distribution of numerous emails to unsuspecting recipients. However, the definition of spam under the Spam Act 2003 (Cth) (the Act) is not restricted to emails and does not have to be mass distributed — a single commercial electronic communication will contravene the Act if the requirements are met. The Act covers email, instant messaging, SMS and MMS (text and image-based mobile phone messaging) of a commercial nature. It does not cover faxes, internet pop-ups or voice telemarketing.

The Act sets out three essential requirements that must be met in order to ensure that a commercial electronic message is not spam, namely:

• the sender is identified;

• the message is sent with consent; and

• the message includes a functional unsubscribe facility.

See Application of the Act.

There are limited defences available for alleged breaches of the Act. The sender bears the evidentiary burden of proving these defences.

See Liability under the Act.

A primary method through which a business distributing spam obtains electronic addresses is to purchase customer lists of internet traders or to use computer programs that “harvest” electronic addresses from the internet.

The Act prohibits:

• suppliers from supplying or offering to supply address-harvesting software or a harvested-address list;

• a person from acquiring address-harvesting software or a harvested-address list; and

• a person from using address-harvesting software or a harvested-address list.

Certain territorial connections must be present to establish these contraventions.

See Prohibition on address harvesting.

Spam compliance is an area that is the subject of significant activity by the regulator, the Australian Media and Communications Authority (ACMA), in recent times.

The maximum penalty for an initial offence under the Act is $84,000 per day for an individual and $420,000 per day for a body corporate. For repeat offences, the maximum penalty increases to $420,000 per day for an individual and $2.1 million per day for a body corporate.

See Enforcement.