Aussie Spam Act applied to US SMS marketing outfit
Did you know that SMS-based marketing is subject to Australia’s Spam Act ?
Or that the Australian law can also apply to offshore marketers ?
mBlox, which describes itself as ‘the world’s largest mobile transaction network’ now knows it, following an $11,000 ACMA penalty.
What mBlox did
According to ACMA, mBlox sent a significant number of commercial electronic messages promoting a premium ringtone download service to mobile phones, on behalf of a premium mobile content provider, without providing notification of how to unsubscribe from receiving more messages.
Is that wrong ?
Under Australia’s Spam Act, ‘commercial electronic messages’ count as ‘spam’ … and that includes SMS.
If you send ‘commercial electronic messages’, including SMS, each message must:
- be sent with the recipient’s consent
- include clear and accurate sender identification, and
- offer a functioning unsubscribe mechanism.
mBlox didn’t include the unsubscribe option in its messages.
But isn’t mBlox a US outfit ?
Yes, it is. But Australia’s Spam Act applies to all marketing that has an ‘Australian link’, and that includes when ‘the computer, server or device that is used to access the message is located in Australia’.
ACMA used its ‘infringement notice’ powers
Similar to an ‘on the spot’ speeding fine, an ‘infringement notice’ is an official allegation of breach of the law. The recipient can pay the penalty, and that’s the end of the matter, or they can decline to pay. If the authority wants to take it any further, it will then issue court proceedings.
One downside of not paying is that the court’s level of fines is much higher. If you lose, you are likely to pay a lot more.
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