Spam Act 2003 – Information Sheet

What is Spam?

The Spam Act 2003 (the Act) refers to spam as "unsolicited commercial electronic messaging".

A single electronic message may constitute spam if it:

  • is commercial in nature – i.e. it could be construed as offering a commercial transaction, such as goods or services for sale, or merely directing the recipient to a location where a commercial transaction could take place
  • is sent without the prior consent of the recipient
  • fails to include accurate information about the sender
  • does not include a functional unsubscribe facility.

What is the Spam Act 2003?

Australia has joined an international effort to reduce the amount of spam (or junk) mail which is sent and received world-wide each day. The Act, which came into effect in April 2004, is the Australian Government's anti-spam legislation. It prohibits the sending of unsolicited commercial electronic messages that have an Australian link – subject to a few exceptions. Breaches of the Act can result in severe financial penalties.

The Act goes further than merely seeking to reduce the amount of spam; it also covers mobile text messaging electronic communications including SMS, MMS and iM. It does not however cover, for example, the facsimiles sent, or telephone calls made, by telemarketers.

In addition to prohibiting spam, and defining strict rules for sending legitimate commercial electronic messages, the Act also outlaws the use of electronic address harvesting software. Lists which have been generated using such software for the purpose of sending unsolicited commercial electronic messages are also outlawed.

The Act only applies to those commercial electronic messages with an Australian link. It does not apply to spam originating from outside Australia.

How does the Spam Act 2003 affect the University of Sydney electronic mailings?

All of the University's "commercial" electronic messages, except for the limited circumstances set out below, must comply with the Act. This means that all such messages must:

  • only be sent to persons who have given their consent (express or implied) to receive the message; and
  • include the required information about the sender (i.e. who is responsible for sending the message and how they can be contacted); and
  • contain a functional unsubscribe facility.

An electronic message is commercial in nature if the message contains some invitation to do business or has any one of 13 commercial purposes that are set out in s.6 of the Act. These commercial purposes are defined broadly to include many more activities than just supplying goods or services. A message containing factual information does not constitute "spam" unless it can be construed as offering a commercial transaction.

Express consent is where the recipient has specifically requested a commercial message from the sender. Consent may be inferred where it is clear the recipient has a reasonable expectation that a commercial message will be sent e.g. where there is an existing relationship.

The Act specifies that commercial electronic messages must contain accurate sender details and contact information such that the recipient should be able to know who has sent it and how to contact them.

Recipients must be given the choice to opt out, or unsubscribe, from future commercial electronic messages. This must be clearly presented, easy to use and where a recipient chooses to opt out their request must be dealt with promptly.

Are there any exemptions for the University of Sydney under the Spam Act 2003?

There is a limited exemption for educational institutions under Schedule 1 of the Act. The University may send unsolicited "spam" but only where the University is the supplier or prospective supplier of the goods or services concerned and then only to students, former students, or to members of the household of a student or former student. However, these messages must still contain the required information about the sender.

Where can I get advice regarding University of Sydney electronic commercial messages?

Please contact the University's Web and Print Production unit.