[LINK] Tiny Fines, and for only 1 of 2 Corporate Felons

[Roger Clarke]

Campaign fizzer: Vodafone cops $110K fine for Coke SMS ad
ARI SHARP
November 10, 2009 - 5:23PM
Brisbane Times
http://www.brisbanetimes.com.au/technology/biz-tech/campaign-fizzer-vodafone-cops-110k-fine-for-coke-sms-ad-20091110-i6vv.html

Vodafone Hutchison Australia has agreed to make a $110,000 payment to 
the media regulator after it sent out 100,000 text messages as part 
of a marketing campaign for Coca-Cola that might have breached 
anti-spam laws.

But the Coke offshoot that launched the campaign, Coca-Cola Asia 
Pacific, has been spared any penalty for the two batches of 50,000 
text messages that went out on October 2 and 9 last year. It got away 
with only a formal warning.

The Australian Communications and Media Authority (ACMA) launched an 
investigation into whether the messages breached the 2003 Anti-Spam 
Act because they did not give recipients information on how to 
unsubscribe or contact the sender.

The messages, which were sent to customers who signed up to the 
Vodafone Live service, read: "Take a hint from your PC and reboot. 
You'll work faster. Reclaim your lunch hour with a friend. Escape 
with a Coca-Cola lunch break."

The payment was part of an enforceable undertaking extracted by the 
regulator from Vodafone Hutchinson Australia, which is the entity 
that owns Vodafone after a recent merger.

While the company agreed to make the payment, it said it would 
continue to embrace marketing campaigns via mobile phones.

"Mobile advertising is an exciting new platform ...

[Don't you just love advertisers?!]

...  and VHA looks forward to continuing to work with our 
advertisers, to realise the potential of this emerging medium," the 
company said in a statement.

The $110,000 payment is the highest amount ever under an enforceable 
undertaking, which is used by the regulator to gain promises from 
companies that appear to have breached communications laws to reduce 
the chances they will reoffend.

"I would keenly hope that their actions and responses provide a 
sobering reminder to all of the players in the SMS marketing industry 
about the importance of compliance," ACMA chairman Chris Chapman said.

Coca-Cola's marketing partners in the campaign have also been given 
enforceable undertakings, including a $22,000 payment for media 
agency New Dialogue and a promise of financial compensation for any 
spam offences in the next 12 months from Big Mobile.

It is understood Coke's light punishment is because it did not sign 
off on the final message before it was sent, relying on New Dialogue 
to act on its behalf.

[What a cop-out by ACMA!]

"The text messages ACMA is referring to were sent by Vodafone,'' 
Coca-Cola South Pacific said in a statement. ''Although Coca-Cola 
provided materials for the message, it provided senior legal opinion 
to ACMA it was not in breach of the act.

''Anti-spam laws require the recipient of any marketing via text 
message or email to have given prior consent through choosing to sign 
up; to clearly identify the sender; and to give the option to 
unsubscribe, the last two of which appear to have been breached by 
the Coke message.

As well as agreeing to the $110,000 payment, Vodafone Hutchison has 
agreed to appoint independent consultants to review the compliance of 
its e-marketing activities and to launch a training program for its 
staff.

The latest agreement comes less than a month after the Federal Court 
in Brisbane awarded a record $15.75 million in fines against several 
individuals and companies for sending spam text messages.


-- 
Roger Clarke                                 http://www.rogerclarke.com/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University