the grass is greener on the internet


Tricky legislation for BigPond
October 6, 2008, 8:12 pm
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The last week or so has seen Telstra’s BigPond move into the uncharted waters of establishing themselves on Twitter.

Bold? Yes. Successful? Well, so far there’s been some criticism but the company is handling it well.

One thing they ARE being cautious about is whether this move will contravene Australia’s Spam Act 2003 (Cth). And as Zac Martin has pointed out, there may be implications for other mediums like blogs, blog comment, facebook messages, etc.

[this post is not AGLC compliant]

To put it simply, at this point the law is not conclusive.

The legislation has attempted to cover mostly e-mail spam while anticipating future methods of spamming. Most of the cases related to the Spam Act have concerned e-mail, so there has as yet been little definition for contraventions using newer mediums.

Apparently the main concern for BigPond’s lawyers is whether Twitter would be considered a ‘commercial electronic message’.

First, does Twitter count?

 Twitter is a microblog site. That means, everyone has their own feed of blogs <140 characters, and these are only distributed to other people if they choose to subscribe to that blog by RSS, or ‘follow’ the blog.

The key point of contention is s 5(1)(b) of the Spam Act , which essentially states that for the penalties to apply a message must have been sent to and electronic address. This address must be in connection to::

“(i) an e-mail account; or
(ii) an instant messaging account; or
(iii) a telephone account; or
(iv) a similar account.”

Is an RSS compiler a ‘similar account’? Now there’s the problem.

If Twitter is a ‘commercial electronic message’, then would BigPond be contravening the law?

I think that the matter would be more complex, but still defensible.

There are three separate offences::

  1. Unsolicited commercial messages must not be sent. – However s 16(2) allows messages to be sent if prior consent has been given. Schedule 2 s 2 defines this as either expressly given, or reasonably inferrable from conduct or relationships.
    If someone is ‘following’ a Twitter feed, that might be express consent. But it is almost definitely a reasonable conclusion that they wanted to hear from the Twitterer.
  2. Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message. – s 17 clarifies that the organisation sending the message and their contact details must be ‘clearly and accurately’ identified. Arguably the link to a profile from the Twitter message will supply just that.

  3. Commercial electronic messages must contain a functional unsubscribe facility. - This is the trickiest. s 18(1)(c) requires the message to contain a statement that the receiver can unsubscribe. Tough with Twitter’s 140 char limit. It would be up to a court to interpret this, but Twitter already provides options to unsubscribe or block, and with a purposive interpretation I think that would be sufficient.

So Twitter’s probably okay, but what about other websites?

With or without the ‘commercial electronic message’ debate, I think most spaces like blogs, Facebook and Myspace are still okay.

Most of these sites require you to be ‘friends’ before you post on their space, which means you have consented to hear from them. (Private messages on these sites may be a different matter though.) In the case of blogs or publically enabled Facebook walls, not using moderating systems for comments may imply that you have consented to all messages.

Most companies will use a profile on these sites to post information, which will clearly identify them.

Most sites also have a blocking capability.

The most iffy of these is blog comments, which is bad news for NAB with the complaints about their advertising tactics in August.

That’s my legal rant for the year, if there’s anything you think I’ve missed let me know.

Incidentally, the Australian Law Reform Commission is reviewing Privacy Law. Part of this is a proposal to have specific legislation for direct marketing – specific consent and easier opting out may be part of this. Won’t be in force for a while if at all, but that WOULD rock the boat for marketers.




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