National telecommunications regulator the Australian Communications & Media Authority (ACMA) has obtained injunctions and declarations against several parties involved in its first SMS spam ('speam') case before the Federal Court. The matter relates to the sending of unsolicited commercial SMS messages, with the Court noting that the alleged conduct disclosed "sustained and systemic violation of statutory prohibitions rather than a mere isolated aberration".
The default judgment by Logan J on 14 August in Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 2) [2009] FCA 887 concerned breaches of the Spam Act 2003 (Cth) [here], the centrepiece of Australia's anti-spam regime. The Court ruled against Hong Kong-based Mobilegate Ltd, Winning Bid Pty Ltd, Simon Owen, Tarek Salcedo and Glenn Maughan in litigation launched by ACMA during December 2008 over alleged contravention of the Spam Act 2003 and the Trade Practices Act 1974 (Cth) in relation to premium SMS chat services..
ACMA chair Chris Chapman said that "This is the first SMS spam case that the ACMA has brought before the courts. The significant resources that the ACMA has put into this matter, again demonstrates our commitment to protecting Australians against illegal conduct."
ACMA had alleged that the five respondents were engaged in a scheme to obtain mobile phone numbers from members of dating websites, using fake member profiles, in order to send commercial SMS. Recipients of the messages were invited to chat via SMS using what were promoted as 'Maybemeet' or 'Safe Divert' services, with that chat involving Mobilegate and Winning Bid employees rather than by "genuine members of dating websites" and consumers being charged up to $5 per message.
ACMA has meanwhile announced that Telstra, the dominant Australian telco, has been fined $101,200 over breaches of the Do Not Call regime, centred on the Do Not Call Register Act 2006 (Cth) [here] and enshrining a register of 3.5 million phone numbers for people who have requested not to receive marketing calls.
People on that register continued to receive telemarketing calls from Telstra's agent despite Telstra being alerted that there was a problem and warned by ACMA. The regulator concluded that Telstra had inadequate compliance systems, procedures and supervision.
Readers might question whether public shaming is effective and question the deterent value of the penalty. Telstra has revenue of over $25.5 billion, EBITDA of $10.9 billion, profits of over $4 billion in the latest FY and probably spends more than the $101K fine in advertising each weekend. ACMA's Chris Chapman complained that Telstra had failed to show leadership - an underwhelming discovery given the corporation's bloodymindedness in recent years - and stated that ACMA "expects large businesses like Telstra to be leading the way and setting an example when it comes to compliance with the Do Not Call register - not falling behind".
A Telstra spokesperson said the company was sorry for the repeated breaches: "It shouldn't have happened, we're sorry it happened, and we have worked co-operatively with ACMA to put in place a range of measures to stop it happening again". Contrition, it seems is the new black.
