ACMA has accepted an enforceable undertaking from Oxygen8 Communications, following Spam Act complaints that SMS commercial electronic messages were sent by content providers using Oxygen8′s platform.
Reading ACMA’s media release, we can see how Oxygen8 was at risk of action if it didn’t offer ACMA an undertaking – effectively the same as submitting to court injunctions.
But will somebody please explain why Oxygen8 agreed to some crazy promises ?
Injunctions should be precise
For practical purposes, an undertaking to ACMA or the ACCC should be treated as being subject to a court injunction. When lawyers are advising a client on what to agree to, they should closely model their advice on the ways that injunctions are crafted.
One key rule is that they should be precise. An injunction ought not say ‘Jack must be a good lad’ or even ‘Jack must drive his car lawfully’. Too loose and broad is either (a) too onerous for the injuncted party or (b) unlikely to be enforced by a court.
Remember, this arises from alleged involvement in Spam Act breaches. Some halfwit has let the company agree, under pain of heavy penalty:
The Company undertakes to do, and to cause its employees and agents to do, the following:
- to comply with C628:2007 Telecommunications Consumer Protections Code …
Zounds!!! That’s over 140 pages of Code and explanatory material. There’s probably not a CSP in the country that’s 100% compliant, and even allowing that large parts of it won’t relate to Oxygen8′s activities, it’s a dreadful outcome to make so broad a promise.
Remember, the undertaking includes ‘to cause … its agents … to comply’. How hard could that be ? The best thing Oxygen8 has going for it is that the undertaking is so harsh a court might try hard to avoid enforcing parts of it.
If this was a court injunction, the judge would have a lot of questions as to why any mention of the TCP Code was appropriate in a Spam Act case.
It’s not the only instance
As if to prove that the reference to the TCP Code wasn’t a one-off moment of madness, the undertaking also commits to compliance with the Australian Standard for complaints handling.
If you ever read an Australian Standard, you’ll find they can be very broad and general. That’s bad for a court injunction or enforceable undertaking. It may seem like more work to draft an undertaking that states the precise steps to be taken, but when you come to comply it saves time, money and uncertainty.
If you’re ever about to sign an enforceable undertaking to ACMA, you have already paid a hurtful amount in legal fees. But for heaven’s sake, don’t just cave in and sign anything to put an end to it all. Signing an unnecessarily broad undertaking is buying trouble and future expense.