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Should politicians spam?

13 November, 2006
By Graham Young

Politicians might have exempted themselves from the spamming laws but the $5.5M award made against spammer Clarity1 Pty Ltd shows how severely the community, and the judiciary, view this practice.

Even if you're exempt from the spam laws, the message is "Don't Spam".

The details of the case are outlined in two articles written by lawyers at Deacons. You can download their report of the case by clicking here (PDF 93kb), and their report of the fine by clicking here. (PDF 35kb).

Deacons provide this handy summary of when it is OK to send bulk emails:

The Spam Act came into force in April 2004 and is enforced by The Australian Communications and Media Authority.

The Spam Act provides that a person must not send CEMs unless there is consent. In the absence of express consent, consent will be inferred if an electronic address is conspicuously published without stating that unsolicited CEMs are not wanted.  The CEM has to be relevant to the recipients' work. For example, if the owner of a business has their email address published in the yellow pages without a disclaimer saying that unsolicited emails are unwanted, then a Court may infer that the business owner consented to receiving a CEM offering or promoting business advisory services.

Consent may also be inferred when there is a pre-existing business relationship between the sender and receiver of a CEM. For example, if someone purchases goods online then a Court may infer that the purchaser will want to be kept informed of the vendor's business and would consent to receiving post sale CEMs.

The Spam Act also provides that:

CEMs must contain an 'unsubscribe' facility, and using address harvesting software or harvested address lists in connection with CEMs that breach the Spam Act, is prohibited.

So, it would appear that it is OK to send emails to people who display their email address prominently without a disclaimer, as long as you don't use harvesting software. It is also fine if you have a relationship with them, which would presumably include constituents.

While politicians don't need to abide by the law, it should be mandatory for them to do so in their own interests. Otherwise, members of their community may well decide to enact a penalty themselves via the ballot box or other less palatable means.

We don't hold ourselves out as experts so if in doubt consult a lawyer.

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