You must be right, of course, that Oxygen8 wanted to wrap the matter up fast. But I still argue that the company may be paying a high hidden price for doing that.

I suspect that ACMA would have deleted the TCP Code reference for the asking. It was a real ‘try on’ to include it, and they were probably as surprised as anyone when Oxygen8 said ‘OK’ to it.

As for lack of compliance checking, the company has put itself in a position where any member of the public, or a competitor, can scream the walls down if they allege Code non-compliance. It isn’t a pretty position to put yourself in.

But again, you’re right. Most unfortunate undertaking elements we see are probably explicable as you suggest: ‘Let’s just sign and get this over.’

Whilst I can’t speak for ACMA or Oxygen8, my take on this is that “voluntary” undertakings (and I use the term “voluntary” loosely – most undertakings are drafted by Regulators) are seen as the soft option. Sure, some businesses quake in their boots at the mere idea of giving an undertaking to a regulator, but the reality is that anything that gets the Regulator off your back without having to pay a hefty fine or risk contempt of court is a good start.

Then comes consideration of the requirements of the undertaking and the reality of the undertaking actually being enforced.

In this regard, the Oxygen8 undertaking does not include a key element that the undisputed “king of undertakings” – the ACCC – would have included. I’m referring to a requirement to provide the Regulator with annual independent auditor reports that the terms of the undertaking have been complied with. The only audit required of Oxygen8 is to do with commercial electronic messages “sent using the company’s shortcodes”; albeit on a quarterly basis.

In fact, even this “audit” doesn’t have to be certified or verified independently. Oxygen8 does it all itself.

So, in answer to your question “But will somebody please explain why Oxygen8 agreed to some crazy promises ?” I suspect “because 1. it was easier to agree than to spend valuable time getting it changed and 2. there is little perceived risk in ACMA actually checking up on compliance with the Code or the Australian Standard”.