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NZ looks at Australian anti-spam moves

Planned Australian federal anti-spam legislation will, if passed in its present form, combat not only Australian-based spammers and Australian companies that use spammers.

It also attempts to fight overseas spam, by extending its reach to any spam message received on a device in Australia, unless the spammer can claim ignorance of the fact that the message might arrive there.

New Zealandโ€™s associate IT minister, David Cunliffe, was in Australia last week talking to government and opposition politicians about sundry IT, communications and other matters, including the anti-spam bill. This was adjourned last week at its second reading stage for a parliamentary recess.

Cunliffe expresses personal support for the Australian billโ€™s opt-in approach, requiring potential recipients to positively express a desire to receive messages. But the New Zealand government will be considering the various approaches taken by other countries, he says, and cannot rule out an opt-out (request not to receive messages) mechanism. The European Community favours opt-in, but U.S. legislative proposals adopt an opt-out stance.

Cunliffe said last week that the Australian approach is not full extra-territorial jurisdiction on day one, which is impossible for a nation to implement on its own. His understanding from Australian officials is that international coverage will be achieved bilaterally, country-by-country, and that assuming the billโ€™s passage the first โ€œmemorandum of understandingโ€ is likely to be signed soon after with South Korea, a source of considerable spam. Eventual full international application is still โ€œthe intentโ€ of the bill, he says.

The Australian bill makes it an offense to send an unsolicited electronic commercial message that has โ€œan Australian linkโ€, as defined in section 7. That term covers a message authorized by an individual or company in Australia, or a communication where โ€œthe computer, server or device that is used to access the message is located in Australiaโ€.

The bill reinforces its planned international application in section 14, stating that โ€œunless the contrary intention appears, this act extends to acts, omissions, matters and things outside Australiaโ€.

The bill imposes strict opt-in conditions on commercial messages, including a requirement that the sender of such a message should be clearly identified and that it should have a functioning unsubscribe facility, so the recipient can request that no further messages of that kind be sent.

Address-harvesting software must not be supplied, acquired or used, the bill says. An electronic address list produced using address-harvesting software must not be supplied, acquired or used.

The bill, however, exempts โ€œdesignatedโ€ messages from the provisions against sending unsolicited commercial messages and from the requirement to have an unsubscribe facility.

Messages which โ€œcontain no more than factual information, with or without directly related commentโ€ and which adequately identify the sender, are designated in a schedule to the bill.

Any message from a government body, registered political party or a religious or charitable organization is also exempt, providing it only relates to goods or services which the organization supplies or plans to supply. Educational institutionsโ€™ communications with their students or their families concerning the establishmentโ€™s โ€œgoods or servicesโ€ are also designated messages.

If passed, the legislation is set down for review in two years from its coming into force.

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