[LINK] I did my duty - and reported spam

[Adam Todd]

At 07:53 AM 25/07/2007, sylvano wrote:
>On Tuesday 24 July 2007 13:49, Adam Todd wrote:
>
><snip>
>
> > Except Political parties are exempt from the SPAM ACT :)
>
>Well, I agree in so far that the Act does point to the "Implied freedom of
>political communication."

There is no implied, statutory or common right for any form of 
Freedom of Speech in Australia.


>But I think it is also a little more accurate to say that the Act doesn't
>"exempt Political Parties," since it does describe how particular kinds of
>messages from a political party (and certain other bodies) that speak of
>goods and services that the party is itself offering may qualify as a
>"designated commercial message" and so is exempt from the section that says
>you cannot send unsolicited electronic messages.

Well you haven't provided a copy of the message so we don't know if 
they were trying to get you to buy kitchen knives or support their 
political views.


> > So you over reacted and didn't understand the law, and hence, like
> > many people have no caused the ACMA to do what they will do more and
> > more now - ignore the thousands of reports that come in each day
> > because it's too hard and costly to try and find the legitimate 5 in
> > the 1000's that aren't.
> >
>
>Interesting.  I have no knowledge of how the ACMA may or may not act in
>response to what may or may not be the thousands of dud reports coming from
>bozos such as me,

Well look at it like this.

ACMA has a person sitting at a computer.  Every day 30,000 emails are 
received telling ACMA that these people received SPAM.  How long will 
it take you to read through 30,000 emails?

So what do you do, you employ four more people to read and reject 
emails because they:

1.  Don't call within Australian Jurisdiction
2.  Are from political parties which are exempt
3.  Aren't spam but emails sent from the EX

I'm sure there are more categories :)


>but I don't think I over reacted in making a report (even
>if the basis for my report was wrong).

Then it is a report not made in good faith, because ignorance is not 
an excuse.

Unless of course you are a Government agency, then anything you do is 
in good faith even when the charges are dismissed and the court 
repremands the department.


>Though, it is exactly for the fact
>that I or others may not have a full grasp of the law that making a report to
>a government body to assess is reasonable.

Yes, like the Privacy Act, few people know what it actually says or 
means.   People just quote it because it sounds like it's important.

After people read it they realise they were way off the mark.

Did you know that all the touting of "In Australia we have a system 
where you are innocent until proven guilty by a court of law" 
actually isn't the case fornearly all Criminal Charges under the Criminal Code.

Yep that's right, according to the Criminal Code, Doctor Haneef as 
the sole responsibility of proving to the court that he is not guilty.

Check it out - discover that the authorites now have the power to 
bring a charge against you and YOU have to prove you are not 
guilty.  It use to be the other way around, the prosecution had to 
put on a full case.  But see, over many years, policing has become 
lazy.  They miss things, they do the wrong thing, they get officers 
to write addresses of terrorists in the back of suspected terrorists 
diaries and then interrogate the person that they wrote the entry in 
their diary.

A defendant needed only to bring a shadow of a doubt that they did 
not commit the crime.

But now, there is no shadow, except from the prosecution.  A 
Defendant has the sole onus to prove they did not commit the crime.

Even in the Supreme Court, if you are before Justice Barr in NSW, 
causing a shadow a of a doubt is valueless, even if you use the 
plaintiffs own documents proving your case, because as a defendant 
you have to prove you case with your own documents, and if you have 
none, you can't win.  Even if the document you tendered was lied 
about by the Plaintiff in the witness box.  That means nothing 
because you have to prove that the Plaintiff is wrong using your own 
documents, not their documents.

Interesting huh.

If you are ever a defendant, the best approach these days is the 
offensive, not the defensive, or what has traditionally been the 
casting of a doubt approach.  Nope, go in for the kill, make the 
Plaintiffs defensive and keep the heat on.

> > It's not a commercial e-mail.  It doesn't purport to sell you a
> > product that is marketed to the consumer.
>
>Firstly, consider the words in the footer of the offending email:
>
>"The Citizens Electoral Council is a registered political party and this
>message is a designated commercial electronic message as defined under
>Schedule 1 of the Spam Act 2003"

Yes.

>That's their words.

Yes it is.

>[INTERESTING NOTE: But, at the Australian Electoral Commission, I see they
>were deregistered as a political party at the end of 2006...  Clearly another
>legal story there.... ]

Parties are deregistered before every election.  When an Election 
period commences, the parties are required to obtain a certain number 
of signatures and re-register the party.

>Secondly, since their email is presented in a manner (and described 
>by them as
>a commercial email), and points to their website that has an online store
>selling product,  I have reasonable grounds to view it as a message where at
>least one of their purposes is to sell product.  And this is in the Act as a
>part of the basis for assessing if a message is a commercial one or not.

So the email says "Hi we're the CEC we've got some great products you 
must buy, viagra, calais, and some sexy used nickers, you can buy 
them from our store using your credit card, don't miss out, they won't last."

Is that right?  Or something to that affect?  Maybe they are selling 
tickets to Haneefs trial?

> > Do they want you to pay them money and do they offer to give you
> > something in return?
> >
> > No.
>
>See above.  But simply they do wish me to read their stuff, watch videos, buy
>product from their online store and join their mailing list.

You haven't provided the content of the email so we can't assess it 
pursuant to the Statute.


>Also, while the ACMA advises me it nigh impossible to prove harvesting
>activities,  this must be something they do given that I received the
>not-Spam to a number of my email addresses.

There you go :)

I'm getting spam to an email address that is registered and used only 
on one web site and has only been used for the registration process 
:)  It's a legitimate web site.

Others on the site are getting SPAM too, so I've got the company 
investigating.  I suspect their database has been hacked, given the 
wide range of parties reporting to me the spam :)

>Thank you for the robust response.  I have learned a little more in the
>process.

Try using Alan's hard work:  www.austlii.edu.au

Read the law relating to the action you want to take.  It helps to 
read the process, so you can create your documents to meet the 
process and you'll have far greater success and result :)

And I'd fax a complaint to the ACMA, not email it :)