[LINK] Fwd: MR146-08: ACMA issues formal warning to Hyarchis Company Ltd. for alleged breaches of the Spam Act [SEC=UNCLASSIFIED]

Michael Meloni mike at somebodythinkofthechildren.com
Thu Nov 20 11:20:46 AEDT 2008

Antony Barry wrote:
>> From: "Australian Communications & Media Authority"  
>> <media at acma.gov.au>
>> Date: 19 November 2008 2:18:46 PM
>> To: <tony at tony-barry.emu.id.au>
>> Subject: MR146-08: ACMA issues formal warning to Hyarchis Company  
>> Ltd. for alleged breaches of the Spam Act [SEC=UNCLASSIFIED]
>> Reply-To: media at acma.gov.au
>> The Australian Communications and Media Authority has issued a  
>> formal warning to Hyarchis Company Limited for alleged breaches of  
>> the Spam Act 2003. The alleged breaches were in relation to the  
>> sending of commercial electronic messages by SMS, without the  
>> consent of the recipient. The full media release can be found at  
>> http://www.acma.gov.au/WEB/STANDARD/pc=PC_311536

Here is a letter allegedly written by Hyarchis Company Ltd and published 

There are quite a number of spelling errors, so its accuracy is highly 


"We are a content provider in the MPSI. We are an active member of the 
Communications Alliance. We comply with all laws, industry codes and 
regulations in this country.

Despite all this, we were blamed publicly today by ACMA in a Media 
Release where we are accused of marketing spam. This is absolutely 
ridiculous, as all we were doing was following the industry guidelines.

Let us explain: When soneone in Australia surfs the web and in 
particular free sites, then these are - as you surely know - financed by 
advertising. WE do - as many players in the industry - spend a 
significant amount of our budget on web marketing to attract new 
customers to our services.

If a customer comes across our offer and is attracted, the MPSI industry 
guidelines request the folllowing steps:

(a) Customer has to enter phone number
(b) customer has to tick off Terms and Conditions
(c) Customer has to click on "send" button

Once that all has been fulfilled, the MPSI guidelines require that a 
message is sent to the customer to ask him to confirm the request. This 
step is compulsory to ensure that the real account holder received the 
compulsory message as described above.

Only once he confirms this by sending another message from his handset, 
or entering a unique code (which was sent to his handset) into the web 
marketing, he will be entered into the service.

In our case, obviously someone who was not the account holder though it 
was a funny idea to enter a random number (0411 111 111) into one of our 
web ads. Of course, the real account holder received the compulsory 
message as described above.

The customer immediately complained to ACMA. ACMA then started an 
investigation and obviously - after extensive correspondence - found us 
guilty of spam for sending this compulsory message. The reasoning was as 

"The unique nature of this electronic address (0411...) however was not 
identified by Hyarchis as one which could be potentially entered by 
parties who are not the account holder of the electronic address."

We (Hyarchis) replied inter alia as follows:

"(...) It lies in the nature of the medium that abuse by persons using 
the website or web advertising cannot be entirely avoided by the 
advertising company, meaning it is impossible for advertisers to stop 
incorrect mobile phone numbers being entered into web advertising or web 
pages (by mistake or on purpose and by persons known or unknown).

The advertising company will, in accordance with the guidelines, send am 
essage to the number entered into the web ad. If and only if the 
customer then proceeds as instructed in the message, will the customer 
be entered into a service."

ACMA did not find this reasonable. The decision was furthermore based on 
"significant contact" ACMA had with the account holder - which we do not 
see as a legal foundation, but more as a factor that supports our view 
that the decision has not been made on an objective basis.

However, we are not surpised the account holder had "significant 
contact" with ACMA, as his mobile number is extremely "fancy" - and 
therefore would be frequently entered by "funny people" into web ads.

BOTTOM LINE: Everyone who wants to do web marketing in Australia from 
now on has to employ hundreds of thousands of staff out there to sit 
besides every soul surfing the web here 24/7/365. As soon as they enter 
a phone number into a web ad, they have to verify that that they are the 
account holder. The process is simple: They just have to ask for a photo 
ID and the customer's contract with the carrier, so the marketer can 
prove the person entering the number is the account holder."


Michael Meloni

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