Spam Act 2003 Review
Australian Mobile Telecommunications Association
February 2006
Contents
Contents
1.Introduction
About AMTA
Overview
2.The Spam Issue
Overview
Public Perceptions of Spam
Defining ‘commercial electronic messages’
Consent
Inadvertent & Uninformed Consent
Consent obtained by misleading, deceptive, dishonest or fraudulent conduct
Identification & Unsubscribe facility requirements
Identification Requirements
3.Interaction with other legislation
4.Role of the Mobile Telecommunications Industy
5.Awareness raising and education
6.Enforcement
7.Conclusion
1.Introduction
1.1The Australian Mobile Telecommunications Association (AMTA) welcomes this opportunity to comment on the Department of Communications, Information Technology and the Arts’ (DCITA’s) Spam Act 2003 Review Issues Paper (the Issues Paper). As an association representing the mobile telecommunications industry, AMTA’s comments will focus on the issues directly affecting mobile telecommunications. AMTA also notes that DCITA is addressing questions in relation to unsolicited voice calls and the possibility of a ‘do not call’ register through a separate process. This submission represents the views of AMTA members including AAPT, Optus, Telstra, Virgin and Vodafone in their capacity as carriage service providers (CSPs).
About AMTA
1.2AMTA is the peak industry body representing Australia’s mobile telecommunications industry. AMTA’s mission is to promote an environmentally, socially and economically responsible and successful mobile telecommunications industry in Australia. AMTA members include mobile CSPs, handset manufacturers, retail outlets, network equipment suppliers and other suppliers to the industry. For more details about AMTA, see This submission represents the views of AMTA’s CSP and carrier members.
Overview
1.3AMTA supports and recognises the Spam Act 2003 (the Act) as world’s best practice in responding to community concerns about unsolicited commercial electronic messages (UCEMs). AMTA supports the coverage of the Act, its multi-layered approach to addressing the problem and its efforts to be technology-neutral in its application. AMTA shares the public’s concerns about the impact of spam on the effectiveness of mobile telecommunications and the costs imposed on mobile telecommunications subscribers. AMTA also recognises the impact of mobile ‘spam’ on the effectiveness of mobile telecommunications networks. This submission addresses the spam issue as defined in the Act, as perceived by consumers, and as experienced by AMTA’s CSP members.
2.The Spam Issue
Overview
2.1The Australian Communications and Media Authority (ACMA) defines spam as “unsolicited commercial electronic messages” within the meaning of the Act. AMTA believes this definition is generally clear, and supports its focus on targeting undesirable behaviours such as ‘scam-emails’ or ‘get rich quick’ schemes, while allowing freedom of political, religious or ideological expression.
2.2AMTA members have not yet found mobile spam to be a problem to the same extent that email spam has been. However, the industry has noticed that some operators are engaging in undesirable conduct, some of which may fall within the scope of the Act as currently drafted, and some of which may fall outside the Act. The common thread is that consumers are receiving unexpected commercial contact via their mobile phones. To the extent that the Act does not currently address these issues, AMTA welcomes consultation with ACMA and the relevant government agencies to formulate practical solutions to these problems. Amending the Act may be only one of many possible options for consideration.
Public Perceptions of Spam
2.3Despite the Act’s clarity, confused terminology, especially in relation to the issue of mobile spam, is commonplace between, and within, government agencies and even within the Issues Paper. This creates confusion, frustration and may create the perception that ‘spam’ is inadequately addressed in the Act and/or that the Act is poorly enforced.
2.4An example of this perception problem in mobile telecommunications is presented on pages 25-26 of the Issues Paper. The Issues Paper clearly describes ‘legitimate’ commercial electronic messages (CEM) and the attendant requirements for ensuring that a recipient of a (legitimate) CEM is able to unsubscribe from such a message without undue difficulty or cost. The Issues Paper then refers readers to the ACMA website for more information on how to unsubscribe from (legitimate) SMS messages. Unfortunately, the ACMA guidance confuses legitimate commercial messages with spam. Entitled “How can I protect myself from spam – Mobile phone spam”, the website actually describes subscription services, which are clearly permitted under the Act provided the appropriate requirements have been met. Mobile spam as defined within the Act is not addressed on the website page. While AMTA believes that ACMA has a legitimate role in providing guidance to consumers on SMS subscription services, it should not use the term ‘spam’ to describe or label subscription-type services. AMTA recommends that ACMA’s guidance should more accurately reflect the Act and only use the term ‘spam’ in relation to unsolicited messages.
2.5Further examples of confusion include:
(a)Mobile subscribers confusing spam with receiving unintentionally solicited messages (eg. the customer applies to receive a free ring tone without reading terms that stipulate deemed consent to receive advertising); and
(b)The media incorrectly using ‘spam’ terminology. For example, the Sydney Morning Herald uses the term ‘unsolicited spam mail’ to refer to a missed call from a marketing company to a mobile subscriber (SMH, p3, 6 Jan 06).
2.6AMTA does not condone the type of marketing conduct described in the examples above, but does not consider that the scope of the Act extends to the situations described above. AMTA notes, however, that such examples may be considered by consumers to be ‘spam’. In each case, CSPs bear significant costs in investigating whether a particular ‘spam’ complaint does in fact involve a UCEM. Given the confusion, it is not surprising that only a small number of ‘spam’ allegations reported by customers are actually UCEMs.
Defining ‘commercial electronic messages’
2.7AMTA acknowledges that under paragraphs 6(1)(m) – (o) of the Act, a message may be a CEM if it can be concluded that one of the purposes of the message was to assist someone to obtain, by deception or dishonesty, a financial benefit or gain. The Explanatory Memorandum to the Act clearly states Parliament’s intention that the Act addresses ‘scams’ such as the ‘Nigerian scam’ emails and ‘Get-Rich-Quick Schemes’. The mobile telecommunications industry is currently seeing scams targeting consumers on their mobile phones. In particular, scams involving consumers being charged for unsolicited premium rate messages (eg. from an adult text chat service or messages containing ring tones) they have received. AMTA considers it would be consistent with the principles of technological neutrality for the Act to equally apply to SMS / MMS scams and AMTA seeks clarification as to whether these types of messages do fall within the definition of CEMs.
2.8AMTA also notes that the definition of “commercial” may inadvertently include messages that should fall beyond the ambit of the Act. For example, email signatures that promote a business or product may potentially be caught by the Act. AMTA suggests that DCITA take this opportunity to also clarify that these types of messages are not intended to be covered by the Act.
Consent
Inadvertent & Uninformed Consent
2.9While AMTA supports the ‘opt in’ approach of the Act, AMTA also recognises that there is significant consumer angst in relation to unwanted or unexpected commercial messages that customers may have consented to without realising. This situation may arise when a consumer does not read the terms and conditions associated with a service, or does not fully understand what they are consenting to. This confusion is exacerbated by the ease with which customers can use one device (eg a computer) to subscribe to a service received on another (eg a mobile phone). For example, a customer can subscribe online to receive advertising texts or multi-media messages (MMS) on their phone. This may make it difficult for customers to realise or remember that they have subscribed to a particular service, and increases the difficulty of proving that a message has been unsolicited. In addition, some services invite consumers to subscribe the mobile phone numbers of their friends and family.
2.10AMTA suggests that these matters are best addressed through consumer awareness and education activities. AMTA supports ACMA in undertaking additional consumer education activities on these matters with the aims of encouraging customers to:
(a)take steps to protect themselves, such as being fully aware of the terms and conditions of any messages and services they solicit, consent or subscribe to; and
(b)warning customers of the various ways in which they might inadvertently consent to receive messages they don’t actually want.
Consent obtained by misleading, deceptive, dishonest or fraudulent conduct
2.11AMTA is also aware of circumstances where consumers have been misled into subscribing, consenting, or soliciting CEMs. For example, a consumer may be misled into believing that a message was sent from a person they know and therefore misled into responding to the message. According to Schedule 2 of the Act, the responding message might be taken to be inferred consent (i.e. the person has not specifically requested information but has demonstrated an expectation that they wish to receive messages (which they believe are from an acquaintance) based on their conduct).
2.12AMTA recognises that consumers may also be able to seek address to such conduct under other legislation such as the Trade Practices Act 1974 (TPA), State Fair Trading legislation, and the Crimes Act. Therefore AMTA does not consider that the existence of these types of consumer concerns reflect inadequacies in the Act. However, for the purpose of assisting AMTA members to address consumer concerns about such conduct, AMTA seeks clarification on whether the Act’s definition of unsolicited CEMs includes CEMs received by consumers who have been misled into subscribing, consenting, or soliciting those CEMs. AMTA also seeks clarification on whether such initiating messages might be considered CEMs under paragraphs 6(1)(m), (n) or (o) of the Act.
Identification & Unsubscribe facility requirements
Identification Requirements
2.13AMTA supports the continued operation of the unsubscribe facility requirements of the Act. Similarly, AMTA has not identified any need to change the identification requirements of the Act. AMTA notes, however, that, where the sender of a CEM cannot be identified, this may create difficulties in taking enforcement action against the relevant parties. In addition, there are direct costs to CSPs in assisting investigations to identify offending parties where the originating telephone number cannot be identified by a spam recipient. These costs are currently borne solely by the industry and without compensation. While AMTA members are willing to assist ACMA in identifying offenders, it should be recognised that there are additional costs associated with identification that may warrant further action to deter senders from masking their identities (eg. though masking calling line identification of mobile phones).
3.Interaction with other legislation
3.1As discussed above, AMTA believes the Act appropriately defines and addresses the issue of UCEMs in mobile telecommunications, but confusing use of the term ‘spam’ from within, and between, government agencies can cause frustration and potentially reduce confidence in the Act and its enforcement. This is unfortunate, as it would appear that the Act, in combination with other legislation and initiatives, is addressing spam to the extent possible, and certainly to an extent that has been internationally recognised as world’s best practice. Further, other legislation and initiatives address some of the associated issues that people incorrectly identify as “spam” that fall outside the definition of UCEMs.
3.2AMTA notes that the TPA currently provides consumer protection for demands of payment of unsolicited goods, and from issues associated with false advertising of services by corporations. These provisions are important in addressing issues perceived as ‘spam’ by consumers (see earlier discussion in relation to consent). For example, s52 of the TPA prohibits a corporation from engaging in misleading or deceptive conduct, which could apply to the sending of a text message as described in paragraph 2.11. In addition, section 64 of the TPA protects consumers from being required to pay for unsolicited goods they have received, which equally would apply to unsolicited mobile services (whether by subscription or otherwise) such as ring tones. AMTA notes that ACMA liaises closely with the Australian Competition and Consumer Commission, which enforces the TPA, and with state and territory fair trading agencies on scams being promoted in Australia via spam. AMTA supports this liaison and encourages both ACMA and the ACCC to work closely with the mobile telecommunications industry to develop mechanisms to further protect consumers.
3.3Mobile subscription services are specifically addressed under other legislation within ACMA’s jurisdiction, specifically the Telecommunications Service Provider (Mobile Premium Services) Determination 2005 (the Determination). The Determination directly regulates a number of aspects of mobile premium services and requires development of an ACMA-approved and enforceable self-regulatory scheme to ensure industry resolution of these issues. The Determination includes clear guidance on minimum requirements for subscription services, as well as prohibiting the sending of premium services to consumers, unless specifically requested, and the sending of age-restricted premium services, unless the mobile carrier has verified that the consumer is who they say they are, and is at least 18 years old. The Determination also complements the Act’s unsubscribe provision requirements by providing that the self-regulatory scheme must address the following:
(a)Content suppliers are required to inform a consumer, before the consumer first uses a subscription service by way of a mobile premium service or at the time the consumer accesses the service, how to discontinue the service; and
(b)Content suppliers are required to have the facilities to enable a customer to discontinue a premium SMS or MMS service: (a) by issuing the keypad command specified by the scheme (e.g. STOP); and (b) without being charged a premium rate for issuing the command.
3.4AMTA notes that the Determination and associated documents explicitly recognise the role of content service providers, as well as the role of CSPs. By identifying specific functions in the supply chain, the Determination acknowledges that CSPs do not directly control the content choices made by consumers, nor the terms and conditions under which those services are provided. This is also consistent with the Act, which specifically provides that CSPs will not be considered to be in breach of the legislation merely because they supply the carriage service that enables a contravening message to be sent, so long as the CSP is not responsible for, or knowingly concerned in, sending or authorising the sending of the message in question. AMTA reiterates that the responsibility for compliance with the Act and all other applicable regulation lies with the party authorising the message, not the party providing carriage for that message. AMTA encourages ACMA to modify its current advice to consumers to reflect this, particularly in ACMA’s current “mobile spam” advice which inaccurately describes mobile subscription services, on the whole, as ‘spam’ (without reference to the definition of UCEMs).
3.5When viewed in the context of complementary legislation in Australia, AMTA believes the Act’s current focus is appropriate, and that it does not need to be widened to extend into areas already covered by existing telecommunications or consumer protection legislation. Any additional regulation must be based on evidenced market failure and should avoid duplication and unnecessary compliance burdens on the business community.
4.Role of the Mobile Telecommunications Industy
4.1The Act clearly targets the person or organisation that authorised the sending of the CEM, regardless of whether they actually sent the message in question. It also states that a person will not be considered to be in breach of the legislation merely because they supply the carriage service that enables a contravening message to be sent, so long as the Internet Service Provider (ISP) or CSP is not responsible for, or knowingly concerned in, sending or authorising the sending of the message in question. AMTA believes this focus of responsibility is appropriate. AMTA commends the eMarketing industry on its willingness to accept this responsibility for marketing messages, as demonstrated by the Australian Direct Marketing Association’s eMarketing Code of Practice and the industry’s willingness and commitment to comply with the Code rules.
4.2AMTA also believes that the mobile telecommunications industry clearly has a role in addressing the issue of UCEMs, not only because a proliferation of UCEMs can threaten CSPs’ networks, but also to ensure that consumer expectations are met and that networks remain useful to customers. While AMTA members embrace this role, there are factors specific to mobile telecommunications that differentiate the mobile UCEMs issue from email UCEMs. One of the most significant differentiating factors is the sender’s costs of initiating messages to a mass audience - the cost of sending email is negligible whereas, with SMS, the senders incur a cost for each message sent. Mobile networks operate in fundamentally different ways and in different environments to internet networks and this limits the ability of CSPs to implement measures that may be more simple for ISPs to implement. For example:
(a)Just as it would be unfeasible for the Post Office to screen every item of post, it is not technically possible for CSPs to filter for spam on mobile telecommunication networks. While filters can assist ISPs to address the problem, they are not currently technically feasible or practicable for mobile networks; and
(b)CSPs risk breaching commercial supply contracts if CSPs refuse to supply carriage services to third parties suspected of sending spam or engaging in misleading or deceptive conduct.
4.3While the economics of the mobile telecommunications industry is changing, and will continue to change with the wide-spread take-up of 3G technologies, mobile spam is not currently a major problem in the way that email spam is, in part due to its per unit cost. AMTA is regularly reviewing this issue and will continue to take steps to assist consumers where possible, recognising that technical solutions for email spam may not necessarily be appropriate or practical for SMS spam.