01 October 2008 How Replying To This Could Be Illegal

We have a problem.

Its realisation comes after Telstra Bigpond raised a legal issue over their Twitter account.

They had worries about breaching the 2003 Spam Act. Currently, their legal department is trying to determine if their communications could be considered a commerical electronic message, in which case would be against the law.

The Australian Government Department of Broadband, Communications and the Digital Economy has this to say about the issue…

The Spam Act 2003 prohibits the sending of spam, which is identified as a commercial electronic message sent without the consent of the addressee via email, short message service (SMS), multimedia message service (MMS) or instant messaging. The requirements under the Spam Act apply to all commercial electronic messages, including both bulk and individual messages.
Meanwhile the Australian Communications and Media Authority defines spam as…
Any message that doesn’t meet the following three conditions is defined as spam…

+ Consent – The message must be sent with consent of the consumer.
+ Identify – The message must contain accurate information about the person or organisation that authorised the sending of the message.
+ Unsubscribe – The message must contain a functional ‘unsubscribe’ facility to allow you to opt out of receiving messages from that source.
As social media marketers, we should be worried. And not just about Twitter. Any social media response unit could be breaching the Spam Act 2003. A comment on a blog post doesn’t have consent. Nor does a post on a YouTube video.

I don’t know much about this area of law, but this is definitely something we should be looking into.

Anyone with some more information is always welcome to comment.

Posted by Zac Martin
6 Comments
  • Matt
    Posted at October 1, 2008 8:30pm, 01 October Reply

    Hells yeh! I’m sick of their bot reposting other peoples replies that have the B or T word in them.

    I’ve suggested that it / they should be banned for using a bot but I don’t believe Twitter actually cares that much..

  • Zac Martin
    Posted at October 1, 2008 8:34pm, 01 October Reply

    Matt, even a human posting could be considered spam under the Spam Act 2003.

    Which is fine for Bigpond if they’re going to keep up what they’re doing, and in that case they deserve it (although it looks like they are trying to fix it). But what about the genuine brands ready to engage, will they be restricted by these laws?

  • Granleese
    Posted at October 1, 2008 10:42pm, 01 October Reply

    Hi Zac

    This is an important discussion – good on you for blogging it.

    I suspect the loophole is that, specifically, Tweets are not: emails, SMS, MMS or IM. Yeah, it isn’t instant messaging.

    Just to clear it up as well, posting a comment on someones blog or (public) MySpace pages, etc is not strictly speaking spam either. Its f-cking annoying, but by definition of the Act it isn’t spam. It would, legally, be classified as content.

    You could be breaking the law by posting on a blog or MySpace page if you were misrepresenting someone or something. This would be classified as fraud.

    I definitely think the Spam Act needs to be amended to take into account our UGC generation (it was drafted in the late 90s).

    Keep up the discussion.

    S

  • Zac Martin
    Posted at October 1, 2008 11:46pm, 01 October Reply

    @ Granleese

    Thanks for the comment and I think you’re right. I’ve been reading into it all afternoon and it would be hard to justify tweets as a commercial electronic message.

    As far as I can tell, if it isn’t a commercial electronic message then you don’t even need to go into the definition of spam, but if it is then you do.

    With that said, I don’t think it’s very clear and has the potential to scare off brands. In the case of BigPond it might have even been the reason for their poor execution.

    Thanks for adding to the conversation.

  • Granleese
    Posted at October 2, 2008 12:27am, 02 October Reply

    Zac re: poor execution – I think if you read the BP response today you’ll see that is exactly the case: http://www.nowwearetalking.com.au/blogs/the-scrum

    Judging by the open attitude, it would appear they are embracing it. Which is more than you can say for Optus or Vodafone.

  • Zac Martin
    Posted at October 2, 2008 12:36am, 02 October Reply

    @ Granleese

    Yes, all things considered they are doing more than any of their competitors and we don’t want to scare them off.

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