Australia’s “Tough” Anti-Spam Law Nets One; That’s Right: One

An Australian business seminar marketer became the first to be fined under the country’s anti-spam law last week when a federal court ordered the company to pay approximately $4.2 million for sending 280 million spam e-mails.

The Federal Court fined Clarity1 Pty Ltd $4.5 million (AU) and its director Wayne Mansfield $1 million (AU) for sending unsolicited e-mail hawking seminars and other products.

Hey, wait a minute. Isn’t Australia’s anti-spam law supposed to be one of the toughest in the world? Anti-spam activists sure love it. The reason: Australia’s anti-spam law is opt-in based, meaning it is illegal to send even a single e-mail to anyone who hasn’t given permission to receive it.

By contrast, the U.S. Can Spam Act is a more commerce-friendly, opt-out based law, meaning it isn’t illegal to send e-mail to people who haven’t given permission until they ask the mailer to stop. As a result anti-spammers sarcastically refer to the U.S. law as the “You Can Spam Act.”

But Australia’s “tough” anti-spam law has resulted in exactly one, count ‘em, er, it, one prosecution. How many has the U.S. Can Spam Act resulted in?

A few quick searches of the Federal Trade Commission’s Web site and Google bring the following results:

--In September, a federal judge in Atlanta awarded Internet service provider, EarthLink, an $11 million judgment against KSTM, LLC, for sending millions of illegal mortgage related e-mail advertisements nationwide. EarthLink sued KSTM under the Can Spam Act.

--In June, Texas spammer Ryan Pitylak and his former partners reportedly agreed to pay $2.5 million plus attorney fees to settle a lawsuit bought by the state of Texas while the businesses they ran were ordered by a judge to pay $7.5 million, all for allegedly violating the Can Spam Act.

--In April the FTC and California Attorney General Bill Lockyer settled with Optin Global, Inc., Vision Media Limited Corp., and the companies’ operators Qing Kuang “Rick” Yang, and Peonie Pui Ting Chen for $475,000, for allegedly violating state and federal anti-spam laws.

--In March, San Francisco-based Jumpstart Technologies settled with the FTC for $900,000, for allegedly violating the Can Spam Act.

--In November 2005, the FTC announced that Global Net Solutions, Inc.; Global Net Ventures, Ltd.; Open Space Enterprises, Inc.; Southlake Group, Inc.; Wedlake, Ltd.; WTFRC, Inc., doing business as Reflected Networks, Inc.; Dustin Hamilton; Tobin Banks; Gregory Hamilton; and Philip Doroff had paid $621,000 to settle charges they violated the Can Spam Act and the FTC’s Adult Labeling Rule.

--In June 2005, Creaghan A. Harry, doing business out of Boca Raton, FL, as Hitech Marketing, Scientific Life Nutrition, and Rejuvenation Health Corporation, agreed to pay $485,000 to settle FTC charges brought under the Can Spam Act that he used millions of illegal e-mails to tout bogus anti-aging properties of HGH herbal supplements.

--In May of 2004, the FTC announced that Brian Westby of Ballwin, MO and Martijn P. Bevelander of the Netherlands settled with the agency for $112,500 for allegedly violating the Can Spam Act by, among other things, using deceptive subject lines and false return addresses.

--The FTC announced its first Can-Spam related cases in April 2004: one against a Detroit-based company called Avatar Phoenix, the other against a company called Global Web Promotions operating out of New Zealand and, of all places, Australia.

The U.S. Can Spam Act of 2003 went into effect on Jan. 1 2004. It took U.S. authorities a grand total of four months to announce their first actions.

By contrast, it took Australia two and a half years after its Anti-Spam Act of 2003 became affective in April 2004 to nail its first spammer. Moreover, the guy Australian authorities fined last week was a well-known spammer long before the country’s anti-spam law was passed. Mansfield lost a lawsuit in 2002 for admitting in court papers that spam was a part of his business.

This column is not a criticism of Australia or its anti-spam efforts. It is simply to point out that in terms of results, anti-spammers’ criticism of U.S. anti-spam law compared to that of Australia is baseless—these days, almost comically so.