[1] <http://www.brightmail.com/spamstats.html> at 25 March 2004. Brightmail defines spam as unsolicited bulk email.
[2] 'Spam brings home a harsh reality', The Sunday Age (Melbourne), 11 January 2004.
[3] <http://www.noie.gov.au/projects/confidence/Improving/spam.htm> at 25 March 2004.
[4] All Party Internet Group ("APIG"), Spam: report of an inquiry by the All Party Internet Group' (2003) <http://www.apig.org.uk/> at 1 December 2003.
[5] Ibid.
[6] David E Sorkin, 'Technical and legal approaches to unsolicited electronic mail' (2001) University of San Francisco Law Review 35(2) 325, 330.
[7] Ibid, 330.
[8] Ibid, 332.
[9] National Office for the Information Economy, Spam: Final report of the NOIE review of the spam problem and how it can be countered, (2003) 2. <http://www.noie.gov.au/publications/NOIE/spam/final_report/index.htm> at 27 July 2003.
[10] Dan Oakes, 'The long arm of the law takes a crack at breaking through the spam jam', The Sunday Age (Melbourne), 11 January 2004.
[11] Ibid.
[12] False positives refer to legitimate messages mistakenly identified as spam and being filtered out.
[13] Above n 7, 342.
[14] Above n 11.
[15] <http://www.ecommerce.treasury.gov.au/publications/BuildingConsumerSovereigntyInElectronicCommerce-ABestPracticeModelForBusiness/context.htm> at 9 December 2003. The Best Practice Model is based on the Organisation for Economic Cooperation and Development ("OECD") Guidelines for Consumer Protection in the Context of Electronic Commerce.
[16] Above n 10.
[17] For a code to be registered by the ACA, it must, among other things be 'appropriate' in the way it deals with the matters it covers and must have undergone consultation with industry, the public, consumer representatives, the Australian Competition and Consumer Commission, the Telecommunications Industry Ombudsman and, in some cases, the Privacy Commissioner. <http://www.aca.gov.au/telcomm/industry_codes/codes/about.htm > at 25 March 2004.
[18] <http://www.adma.com.au/asp/index.asp?pgid=1985/#2-%20do%20not%20mail/call%20service> at 9 December 2003. Another aspect of the ADMA Code of Practice is its 'Do Not Mail/Do Not Call' database. Individuals can register with this service and ADMA members must remove the names of any consumer registered from their mailing/call lists.
[19] <http://www.iia.net.au/privacycode.html> at 9 December 2003.
[20] Ibid.
[21] The IIA draft Privacy Code was submitted to the Federal Privacy Commissioner for registration in March 2003. According to the Federal Privacy Commissioner's website, it is currently under consideration.
[22] Above n 20.
[23] Above n 10.
[24] <http://www.scaleplus.law.gov.au/html/ems/0/2003/rtf/03149em.rtf> at 8 November 2003. The Spam (Consequential Amendments) Act makes various amendments to the Telecommunications Act and the Australian Communications Authority (ACA) Act to enable the effective investigation and enforcement of breaches of the Spam Act.
[25] Explanatory Memorandum, Spam Act 2003 (Cth). <http://www.scaleplus.law.gov.au/html/ems/0/2003/0/2003092501.htm> at 8 November 2003.
[26] Ibid.
[27] Ibid.
[28] That is, electronic messages that originate from Australia and messages that are sent to Australian addresses whatever their point of origin: section 7 of the Spam Act.
[29] Section 17 of the Spam Act.
[30] Section 18 of the Spam Act.
[31] Sections 20 to 22 of the Spam Act.
[32] Part 4 of the Spam Act. Penalties for breach range up to $1.1 million per day, in addition to orders for recovery of profits from spammers and payment of compensation to victims.
[33] Parts 5 to 7 of the Spam Act. These measures include a formal warning, acceptance of an enforceable undertaking, or the issuing of an infringement notice. The ACA may also apply to the Federal Court for an injunction or may institute proceedings in the Federal Court for breach of a civil penalty provision.
[34] Similar to the European Union (EU) Directive 2002/58/EC where prior explicit consent of the recipient is required before communications are addressed to them unless it is within the context of an existing customer relationship.
[35] Above n 5.
[36] 'Bill lets some spam slip through the net', Financial Review (Sydney), 18 September 2003.
[37] Above n 5.
[38] Above n 10.
[39] Above n 5. The E-Privacy Directive adopts a modified opt-in approach. It prohibits unsolicited commercial email unless subscribers have given their prior consent. It also allows a company to email customers whose address it obtained in the context of a sale, provided that customers are given the opportunity to opt-out on the occasion of each message.
[40] See heading 'US Position'.
[41] Above n 10.
[42] Schedule 2 of the Spam Act provides that 'consent' may be express consent or implied consent. If a person has a pre-existing business relationship or other relationship such as a family relationship, consent may be implied. Implied consent may also be inferred from the conduct of the person.
[43] Adam Turner, 'Spam, laborious spam, to stay on the menu', The Age (Melbourne), 17 February 2004. Based on a report by anti-spam expert, Bruce McCabe, titled The Future of Spam.
[44] Sections 477.1 to 477.3 of the Criminal Code.
[45] Eugene Clark and Maree Sainsbury, 'Privacy and the Internet' (2002), 90.
[46] Above n 10.
[47] For example, sections 247B, 247C and 247D of the Crimes Act 1958 (Vic) as amended by the Crimes (Property Damage and Computer Offences) Act 2003 (Vic).
[48] Above n 10.
[49] See cases discussed under the heading 'Australian Case Law'.
[50] Australian Competition and Consumer Commission, Submission to the National Office for the Information Economy re: spam <http://www.accc.gov.au/ecomm/spam.pdf> at 27 July 2003.
[51] (1937) 58 CLR 479, at 495-496.
[52] Above n 46, 105.
[53] [2001] HCA 63.
[54] Above n 46, 105.
[55] [2003] QDC 151.
[56] <http://www.privacy.gov.au/business/index.html> at 8 December 2003. The private sector provisions of the Privacy Act apply to organisations with an annual turnover of more than $3 million. The provisions also apply to all health service providers regardless of turnover and some small businesses with an annual turnover of $3 million or less.
[57] Above n 26.
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] <http://www.privacy.gov.au/publications/nppgl_01.html#npp1> at 8 November 2003. NPP 1 provides that an organisation may only collect personal information if necessary for its functions and activities. The collection must be fair and lawful and not unreasonably intrusive; the organisation must take reasonable steps to ensure the individual is aware of the identity of the organisation; the purpose for which the information is collected; who it will be disclosed to; the fact that they can access the information; any law that requires the information to be collected; and the consequences for the individual if the information is not given.
[62] Above n 46, 24.
[63] <http://www.privacy.gov.au/publications/nppgl_01.html#npp2> at 8 November 2003. NPP 2 provides that information can be used for the secondary purpose of direct marketing where it is impracticable to seek the individual's consent before use; the individual can request not to receive such information; each direct marketing communication must draw the individual's attention to the fact they can request not to receive further communications; each communication must set out the organisation's contact details.
[64] Above n 46, 16.
[65] Ibid.
[66] Ibid.
[67] Above n 26.
[68] Above n 46, 16.
[69] (Unreported, County Court of Victoria, 30 October 2000) <http://countycourt.vic.gov.au/judgments/hourmouz.htm> at 4 December 2003.
[70] Henry-Davis-York-iTEAM, 'Spam: remedies against the crime not the ham' (2001) Keeping Good Companies 53(2) 119. Hourmouzis was convicted under section 76E(b) of the Crimes Act 1958 (Vic). This section imposes a maximum penalty of ten years imprisonment and makes it an offence to interfere with, interrupt or obstruct the lawful use of, a computer by means of a carrier (telephone line or ISP) or facility provided by the Commonwealth.
[71] The Corporations Law has been repealed and is replaced by the Corporations Act 2001 (Cth).
[72] (Unreported, Federal Court of Australia, 27 September 2002).
[73] <http://www.aar.com.au/pubs/cmt/foecomnov02.pdf> at 9 December 2003. In a settlement with the ACCC, SkyBiz.com Inc consented to orders of the Federal Court which declared that, inter alia, the Skybiz scheme was a pyramid selling scheme; SkyBiz.Com engaged in referral selling which is prohibited under the TPA; SkyBiz.Com made false or misleading representations.
[74] [2002] FCA 1248 (8 October 2002).
[75] (1998) ATPR 41-646.
[76] Above n 51.
[77] The First Amendment to the US Constitution relevantly provides that Congress shall make no law abridging the freedom of speech.
[78] On 10 March 2004, it was reported that four ISPs - AOL, EarthLink, Microsoft and Yahoo! - filed lawsuits targeting several spammers identified as the most flagrant offenders of the CAN-SPAM Act's rules for sending commercial email. <http://www.brightmail.com/pressreleases/031004_isp-crackdown.html> at 25 March 2004.
[79] David E Sorkin, Spam Laws: United States: Federal Laws: 108th Congress: Summary <http://www.spamlaws.com/federal/summ108.html> at 24 November 2003.
[80] Above n 5.
[81] Jerry Berman and Paula J Bruening, 'Can spam be stopped? Rather than legislate a quick fix, Congress needs to look harder at legal and technical complexities' (2003) Legal Times 26(24) 76, 80.
[82] Subsection 8(b)(1) of the CAN-SPAM Act. <http://www.spamlaws.com/federal/108s877.html> at 26 March 2004.
[83] David E Sorkin, Spam Laws: United States: State Laws: Summary <http://www.spamlaws.com/state/summary.html> at 24 November 2003.
[84] 'Virginia claims toughest anti-spam law in nation' (2003) Computer & Internet Lawyer 20(7) 34. It is estimated that approximately 50 percent of all spam passes through Virginia, the home of AOL.
[85] Above n 5.
[86] Ibid.
[87] Ibid.
[88] 962 F Supp 1015 (SD Ohio 1997).
[89] The court relied on Section 217(b) of the Restatement (Second) of Torts to affirm CompuServe's trespass claim. This section states that a trespass may be committed by intentionally using or intermeddling with another person's chattels (personal property). Intermeddling is defined as intentionally bringing about a physical contact with the chattel.
[90] Above n 7, 348.
[91] 24 F Supp 2d 548, 550 (ED Va 1998).
[92] 1998 USDist LEXIS 10729; 47 USPQ 2D (BNA) 1020 (16 April 1998).
[93] 30 Cal 4th 1342; 71 P 3d 296; 1 Cal Rptr 3d 32; 2003 Cal LEXIS 4205 (2003).
[94] The appellate court disagreed, finding that these rights did not permit Hamidi to trespass on Intel's private property.
[95] It was a narrow 4-3 decision.
[96] Peter A Steinmeyer, 'California spammin': opening the e-mail spigot' (2003) National Law Journal 25(48) 34.
[97] Above n 7, 353.
[98] Ibid.
[99] Coalition Against Unsolicited Bulk Email ("CAUBE"), The Problem <http://www.caube.org.au/problem.htm> at 27 July 2003. According to CAUBE, there is no way for a spammer to know what city you are in, and no reliable way for them to know what country you are in. Even if it were possible and reliable to eliminate out of area customers, this is the era of e-commerce and a customer can be anybody, anywhere in the world.
[100] Unlike Cyber Promotions which was an identifiable and fully incorporated company, if a spammer is a one-person operation, tracking down and identifying the spammer may prove to be a difficult obstacle to enforcement of anti-spam legislation. Most spammers do not have sufficient assets to justify litigation.
[101] [2002] HCA 56 (10 December 2002).
[102] Andrew Sorenson and Matthew Webster, 'Trade practices and the Internet' (2003).
[103] For example, see Macquarie Bank v Berg [1999] NSWSC 526.
[104] Above n 103.
[105] Above n 7, 354.
[106] Ibid.
[107] Danielle Cisneros, 'Do not advertise: the current fight against unsolicited advertisements' (2003) Duke Law & Technology Review 10.
[108] Ibid.
[109] John F Magee, 'The law regulating unsolicited commercial e-mail: an international perspective' (2003) Santa Clara Computer and High-Technology Law Journal 19(2) 333, 339.
[110] Ibid, 333.
[111] Ibid, 336.
[112] Ibid, 337.
[113] Ibid, 356.
[114] Above n 82, 78-9.
[115] Ibid, 79.
[116] Above n 46, 73.
[117] Above n 7, 354.
[118] Ibid.
[119] Above n 7, 328.
[120] Ibid, 358.
[121] Graham Greenleaf, 'An endnote on regulating cyberspace: architecture vs law?'(1998) 52 University of NSW Law Journal 1, 9.
[122] Ibid.
[123] Above n 122, 1.
[124] Above n 7, 353.
[125] Above n 110, 375.
[126] Ibid.
[127] Above n 44.
[128] Above n 82, 82. See also Scarlet Pruitt, 'Spam deluge leads to search for silver bullet' (Apr-May 2003) Information Age 52 <http://infoage.idg.com.au/infoage1.nsf/all/CF9C7EFBBD751EOCA256D08001B5F1D> at 28 July 2003.
[129] Above n 7, 355; n 82, 82; n 110, 379.
[130] Above n 82, 82.
[131] Above n 44.
[132]
Ibid.
[133] <http://www.noie.gov.au/projects/confidence/Improving/Spam/Glossary.htm> at 24 March 2004.