landmark SMS spam case

6 October 2009

Partner Andrew Nicholson reports that the Australian Communications and Media Authority (ACMA) has been successful in obtaining injunctions and declarations against a number of parties involved in its first SMS spam case before the Federal Court.

Chris Chapman, Chairman of ACMA said that the Authority had put significant resources into the matter which again demonstrated their commitment to protecting Australians against illegal conduct. The matter relates to the sending of unsolicited commercial SMS messages.

The Spam Act 2003 provides the ACMA with a range of enforcement options. These include 'mid-tier' options such as the ability to issue infringement notices and allowing the ACMA to determine the most appropriate option on a case-by-case basis. It provides for penalties of up to $1.1 million a day for corporate offenders and $220,000 for individuals.

The Authority instituted proceedings against eight respondents in the Federal Court in Brisbane in December 2008 alleging contraventions of the Spam Act 2003 and the Trade Practices Act 1974 in relation to premium SMS chat services.

The ACMA alleged that the respondents were engaged in a complicated scheme to obtain mobile phone numbers from members of dating websites, using fake member profiles, in order to send commercial electronic messages by SMS.

Unsolicited messages were then sent to the mobile phone numbers offering the opportunity to chat via SMS using services described as the ‘Safe Divert’ or ‘Maybemeet’ services. The chat was not offered by genuine members of dating websites but employees of Mobilegate Ltd and Winning Bid Pty Ltd. Consumers were charged up to $5 per message.

Justice Logan noted that the conduct alleged disclosed ‘sustained and systemic violation of statutory prohibitions rather than a mere isolated aberration.’

A hearing as to penalty is pending against the five aforementioned respondents. A further hearing is scheduled to commence on 30 November against the remaining three respondents.

For further information, please contact:

Andrew Nicholson | Partner
Mullins Lawyers
t +61 7 3224 0261
f +61 7 3224 0333
anicholson@mullinslaw.com.au