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Virgin refuses to take no for an answer
Posted: 04/05/2010
The Australian Communications and Media Authority (“ACMA”) has accepted court enforceable undertakings from Virgin Mobile (Australia) Pty Ltd (“Virgin”) in respect of alleged breaches by Virgin of the Spam Act 2003 (Cth) (the “Act”).
An investigation by the ACMA into Virgin found Virgin breached the Act by sending commercial electronic messages (“Commercial Messages”) to individuals who had ‘opted out’ of receiving Commercial Messages from Virgin. The Commercial Messages sent by Virgin promoted the benefits of ‘opting in’ to receive Commercial Messages from Virgin.
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 Commercial Messages sent by Virgin were not consented to by the individuals receiving them and did not contain an unsubscribe mechanism, thereby breaching requirements the second and third requirements above. The ACMA expressed concern over Virgin’s failure to respect the decision of individuals to ‘opt out’ in the first place.
Under the terms of the court enforceable undertaking, Virgin has undertaken to pay $22,000 and establish training programs, assurance processes and auditing regimes to comply with the Act. |
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