ACMA pings another spammer

ACMA has fined Best Buy Australia $4,400 for breaches of the Spam Act 2003.

The penalty is modest compared to the $1m plus maximums that apply to repeat offenders, but makes it clear that ACMA won’t overlook a spam breach just because it doesn’t involve large numbers.

BBA really asked for trouble by not actioning people’s requests to be dropped off its mailing list.

What BBA did wrong

Under section 16(1) of the Spam Act 2003, you can’t send promo email to anyone without their consent.

The rules are simple enough

‘Consent’ can be express e.g. an opt-in.

It can also be inferred e.g. where the recipient is a current customer.

But there is never consent, of either kind, if the person has actually told you not to email them.

BBA didn’t take ‘stop’ for an answer

It seems that two people who had received promo emails from BBA contacted the company and asked to receive no further mail.  And then more mail arrived.  And then ACMA became involved, and investigated.

When ACMA concluded there was likely to have been a breach of the Spam Act, it issued an infringement notice.

Infringement Notices

These are like ‘on the spot’ speeding fines.  The authority says that it believes an offence or breach occurred and issues a notice claiming a penalty.

You can pay the penalty within a time limit – 28 days for Spam Act notices – and that’s the end of the matter.  That’s what BBA has done.

Or you can decline to pay the fine, and the matter can proceed to court.  Maybe you dispute the allegations and want to defend them in court.  OK, you can do that. The downside is that court-imposed penalties can be much higher than infringement notice penalties, so you might be playing ‘double or nothing’.  Or ‘triple or nothing’ taking into account the legal costs that court involves.

How BBA’s penalty was calculated

• There were two complaints that ACMA had reasonable grounds to consider indicated offences.
• Each complaint carries a penalty of $2,200 per offence for a company. That’s for first offences. Second time infringers get much higher penalties.
• Each offending email is one separate offence i.e. it’s $2,200 per individual email.
• But don’t worry, that’s capped at $220,000 a day

So for BBA, $2,200 x 2 = $4,400.

For ACMA, it’s ‘no hard feelings’

ACMA doesn’t necessarily only fine ‘big bad guys’.  So-called innocent mistakes by ‘little guys’ can also land you in hot water.  As ACMA says in its media release:

ACMA expects all businesses, irrespective of their size, to have the necessary processes in place to ensure that all their e-marketing activity is compliant.

Translation:  If you’re big enough to send marketing email, you’re big enough to understand and comply with the Spam Act.