15:32 Wed 19 May 2004 REF:611DECR1 Y/R: Spam Act 2003 TO: John M HAYDON Ltr dated 2004/05/06 Executive Director Rcd date 2004/05/11 CONSUMER AND UNIVERSAL SERVICE OBLIGATION AUSTRALIAN COMMUNICATIONS AUTHORITY (ACA) Level 13 PO Box 13112 cc Zipworld ISP 200 Queen Street LAW COURTS MELBOURNE VIC 3000 MELBOURNE VIC 8010 Dear Mr Haydon
COMPLYING WITH SPAM ACT 2003Thank you for registered letter dated Thu 06 May 2004 informing us "the ACA has received a complaint from a member of the public, alleging that your business has sent them an unsolicited commercial electronic message ('spam'). This is the response within the 14 days stipulated in your document to that letter signed for and collected by myself as the Public Officer of the Open Interchange Consortium [OIC] on Tue 11 May 2004. A Management Summary B Legal Entity of OPEN Interchange Consortium C Advice received on E-mail and Spam Act 2004 D OIC E-mail processes E Policies and Processes for removing un-subscribes F No E-mail policies in organisations receiving e-mails G Previous complaints to cause mischief H Next Steps Mr HAYDON we believe that we have the correct policies and processes in place to ensure that the OIC complies with the Spam Act 2003. There have been previous complaints with our ISP by competitors who receive our e-mails. The Spam Act 2003 provides them the legal authority to cause further mischief. If you provide us with the e-mail address of the complainant I personally will ensure that the e-mail address is removed from the OIC e-mail contact lists Thank you Yours sincerely STEPHEN GOULD Public Officer OPEN INTERCHANGE CONSORTIUM
1 Consent: The Legal Advice that we have received is that the SPAM ACT 2003 was to provide Consumer (Members of the Public) protection from e-mails soliciting Commercial Business. The OIC is not a Business but a Business Association. Our e-mails are directed to Businesses not to Consumers. The e-mails provided are awareness/education/business e-mails on the "Management Needs to Know" basis for organisations including Government and businesses. 2 Identity: we comply with the Act 3 Unsubscribe: we comply with the Act. However please review the attached details to appreciate the difficulties encountered trying to un-subscribe some business e-mail addresses and whether a person has the authority to unsubscribe a company. 4 As with most legislation the SPAM Act 2004 requires amendment. We will be proposing amendments from our own experiences 5 In the past mischief makers and competitors have tried to have our ISP shut down the OIC for SPAM. Please forward me the e-mail address of the Complainant and I will ensure that it is removed from the e-mail list if it can be found
A MANAGEMENT SUMMARY
The OIC is a not-for-profit unincorporated Small & Medium size Enterprise [SME] Association formed in 1994. It is not a business or commercially run operation. Most of the work is carried out by volunteer members who join the OIC for a number of reasons including: 1 Attend seminars and events to keep informed of developments in Management and Electronic Information Technology issues 2 Sponsor events and programmes to promote their own products and services 3 Tender for new business via the OTMG Tender Information Management Service [TIMS] 4 Network to submit tender consortium response to business opportunities 5 promote products and services internationally Members propose and vote on policies at the Annual General Meetings Members work together for Submissions to Government Public Consultations eg 1 the 2004 draft Free Trade Agreement, 2 the 2003 E-commerce Best Practice Model and 3 1999 E-commerce Public Consultation One of those policies is to keep members and contacts informed of issues by e-mail hence the response in Nov 1999 by OIC members to the Australian Treasury E-commerce Public Consultation A number of the recommendations in that response have been adopted by the US Federal CAN-SPAM Act 2004 rather than the Australian Spam Act 2003. One recommendation included in the US CAN-SPAM Act 2003 was that e-mails contain a code in the title of the e-mail to designate what type of e-mail it is eg ADV Advertising.
B LEGAL ENTITY OF THE OPEN INTERCHANGE CONSORTIUM
The legal advice received on the SPAM ACT 2003 was that it was proposed to stop/limit the number of e-mails from business-to-consumer [B2C] whereby commercial businesses were soliciting orders from Members of the Public to purchase their product or service. The Open Interchange Consortium [OIC] is an e-Business Association whereby only a registered business can become a member not a Member of the Public. That member has to be interested in Electronic Information Technologies [EIT] and be prepared to mainly use e-mail and the Internet for Web Registration. Most of the activities are outsourced to members on a fee-for-service basis or on an e-credits basis. The Legal Advice that we have received is that as the OIC provides events to raise Awareness and keep Business Management information of Electronic Information Technology [EIT] issues that sending e-mails to businesses contacts and not consumers does not contravene the Spam Act 2003.
C LEGAL ADVICE RECEIVED ON SPAM ACT 2003
The OIC does not own the contact lists as members provided a number of services on a membership fee offset and free-of-fee basis to the OIC including: a e-mail lists provided by members for the on-going process of raising awareness of the benefits of Electronic Information Technology [EIT] issues with Business Management. The OIC policy agreed by members is that on accepting e-mail lists from members: 1 The recipients must be commercial companies and not Members of the Public (ie not consumers) 2 That the provider of the e-mail list can only sponsor an event but not the content of the e-mail which will relate to an EIT or Management issue 3 The telephone numbers are retained by the member and are not available to other members 4 There is unrestricted use of that e-mail list as it is for mutual benefit One of the difficulties is making sure that the lists do not contain consumer addresses and we endeavour to remove all e-mails that are @yahoo.com and @hotmail.com e-mail addresses b In addition new lists are regularly added from exhibitors and attendees at IT events. Again every effort is made to ensure that the e-mails are for business-to-business communication and not for business-to-consumer communication c OIC Members can commission contact research for a fee for a specific issue on the understanding that any e-mail lists can be utilised by the OIC
D OIC E-MAIL PROCESSES
We have had in place for the last 4 years a process from removing "Unsubscribes" from the weekly e-mail newsletters. In the "NEXT STEPS" section of each e-mail there is an unsubscribe e-mail address. Once an unsubscribe e-mail is received it is entered into a speadsheet as a record of an unsubscribe e-mail address. That unsubscribe e-mail address is checked with the list of e-mail addresses and deleted when found. HOWEVER often 10-15% of the weekly unsubscribes cannot be found because: 1 the sender has changed ISP or e-mail addresses and the old e-mails are re-directed 2 left the company and someone else receives that left person's e-mail 3 the e-mail goes to a company e-mail eg sales@, info@ etc but the unsubscribe comes from a persons name We do have in place a process whereby we send an e-mail requesting the identity of other e-mail addresses. Sometimes we do not get a response. E3 - Do you have other e-mail addresses "Hi - we have had considerable problems tracking down your e-mail address to unsubscribe you: email@example.com Do you: 1 have other e-mail addresses ? Please advise other addresses 2 act as the "catch all" for other people who may have left ? Please advise e-mail addresses of people who have left 3 review the e-mails to a general e-mail address eg sales@, infor@, marketing@ etc ? If you do, would you please forward these e-mails to your senior sales/marketing/Information Technology/business development managers as this information is provided to keep management informed on Electronic Information Technology issues that will be relevant to your organisation Thank you" Every effort is made to ensure that those unsubscribe e-mail addresses are removed before the next e-mail is sent out the following week. Unfortunately as we are developing new e-business processes sometimes our systems crash and the e-mail system that we uses automatically backs-up to previous e-mail lists hence it is not unknown for an unsubscribed e-mail to re-appear. In addition new lists sometimes contain the e-mails of people who have been previously unsubscribed
E POLICIES AND PROCESS FOR REMOVING UNSUBSCRIBES
Most of the recipients companies do not have e-mail policies for unaddressed e-mails. Often the catch-all e-mail address is reviewed by a junior person. These often change jobs. Here is an example of the responses to an e-mail asking to unsubscribe and we could not find the address This was the response to the e-mail on the Seminar to review the Australian-USA Free Trade Agreement [FTA] with Senator Kate LUNDY Shadow Minister for IT from the National Office of Software Engineering Australia which is an Association for over 4,500 Australian Software Developers. As the person involved was the leaving the Association the parting gesture was to request to unsubscribe for all From: "xxxxxxxxxxxxxxxxx"
F E-MAIL POLICIES IN ORGANISATIONS RECEIVING OUR E-MAILS
To: Subject: RE: Hi - do you have other e-mail address Date sent: Thu, 13 May 2004 09:46:54 +1000 Hi... Yes, I have a number of addresses. Please unsubscribe them all as I am leaving this company: firstname.lastname@example.org email@example.com firstname.lastname@example.org email@example.com firstname.lastname@example.org Kind regards, xxxxxxxxxxxx - Marketing Software Engineering Australia (National) Limited Level 3, 493 St Kilda Road, Melbourne, Victoria 3004 T. 1300 884 888, F. 1300 884 887
In the past there have been previous complaints to Zipworld the ISP that we use. It transpires that previous complaints have been by other businesses that are either other associations or event providers who objected to the way the OIC was using e-mail and web event registration. We have discovered this after we have requested the ISP to provide us with the e-mail address that had complained that it was not removed. This complaint to you may be another example.
G PREVIOUS COMPLAINTS TO CAUSE MISCHIEF
Mr Haydon Please provide me within 7 days the e-mail address of the complainant and I will ensure that it is removed from the list if it is a legitimate complaint within 1 following day We would like to work with the Australian Communications Authority to ensure that companies implement effective e-mail policies so e-mail senders and e-mail receivers both benefit from e-mail as an efficient Business Information Tool. Stephen GOULD Public Officer OPEN INTERCHANGE CONSORTIUM
H NEXT STEPS