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Elders Real Estate Wollongong breaches Spam Act
Posted: 21/01/2010
The Australian Communications and Media Authority (“ACMA”) has issued Danielou Pty Ltd (trading as Elders Real Estate Wollongong) (“Danielou”) with a formal warning for breaches of the Spam Act 2003 (Cth) (the “Act”).
An investigation by the ACMA into Danielou found Danielou breached the Act by sending commercial electronic messages (“Commercial Messages”) to potential purchasers of real estate.
Under section 6 of the Act, a Commercial Message is an “Electronic Message” which is for the purpose of offering the supply of goods or services, advertising or promoting land, offering investment opportunities and so forth. An “Electronic Message” is defined broadly in section 5 of the Act and includes emails, SMS messages, MMS messages, instant messages and similar.
To avoid breaching the Act, all Commercial Messages must:
1. Identify the sender clearly and accurately.
2. Be consented to by the recipient (whether expressly, or implicitly by virtue of conduct and/or existing business or other relationship).
3. Contain an “unsubscribe” mechanism to facilitate the recipient to ‘opt out’ of receiving future Messages.
The ACMA determined that the Messages sent by Danielou did not provide for an “unsubscribe” mechanism and therefore, breached the third requirement described above.
With the Act providing for penalties of up to 10,000 penalty units ($1,168,200.00) for repeat offenders and up to 100 penalty units ($11,682.00) for first time offenders, the formal warning given to Danielou for its breach of the Act by the ACMA under section 41 of the Act is a fortunate outcome for Danielou.
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