Nightclub promoter pays ACMA for illegal SMS marketing under the Spam Act

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Communications watchdog Australian Communications and Media Authority (ACMA) has recently accepted another enforceable undertaking from a company for contraventions of the Spam Act 2003 (Cth) (the Act).

This latest undertaking was given by nightclub promoter Urban Agent after investigations into their SMS marketing practices revealed the company failed to comply with the Act by sending unsolicited text messages without stating who they were from or a way to opt out. In order to address these revelations, Urban Agent undertook to pay ACMA $4500, train its employees, and provide quarterly compliance reports to ACMA for a period of 2 years.

This result follows a dramatic rise in complaints over SMS spam and a string of enforcement action taken by ACMA. Last year, the Federal Court imposed fines totalling $22.25 million after ACMA bought an action against creators of a SMS scheme that sent Spam to victims using details gained via fake internet dating profiles.

SMS marketing and the Spam Act

The Act prohibits unsolicited commercial electronic messages, including SMS and emails, being sent without consent. Even where there is consent, either express or implied by the relationship with the recipient or their conduct, senders of text messages must ensure compliance with the Act and the SPAM Regulations 2004. This includes ensuring that messages:

• clearly identify who is responsible for sending the message, and how they can be contacted;
• specify an address which recipients can use to unsubscribe; and
• contain information which is reasonably likely to be accurate for a period of 30 days after the  message was sent.

Penalties for a breach of the SMS provisions in the Act can be up to $1.1 million per day for corporations and $220,000 for individuals.

Contacts

Melbourne

Dan Pearce, Partner
T: +61 (0)3 9321 9840
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Sydney

Ian Robertson, Partner
T: +61 (0)2 8083 0401
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Brisbane

Paul Venus, Partner
T: +61 (0)7 3135 0613
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