Ok, so a ‘technical foul’ may well have been committed. And the great and the good of the birding community are recommending the appropriate course of action is pretty much to sink a small film that could, with our support, help promote Australia’s wonderful birdlife. As opposed to, say, supporting the film or even giving Mark some friendly advice based on expert knowledge of the Spam Act. Bravo. mjh ===============================
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Postings about threats of boycotts were referred to in a couple of recent postings. I think I was the only one who actually mentioned a boycott, and I’d just like to point out that it was a joke.
A small part of my job at work is to forward undetected spam (false negatives) to our anti spam software suppliers in order to keep their filters up to date.
I probably dislike spam to a greater degree than many because I have to do more than just delete it – I also have to read it to decide if it’s really spam. I didn’t consider the first two Balangara emails anywhere near qualifying for forwarding.
But I was a little dismayed to see the words “amazing” and “ringtone” (bad), and “lyrebird” (good) in the same subject line. Having read the earlier ones, I just deleted it.
Nothing more would have come of it if no one had mentioned it on birding-aus. Having discovered we’d all received the same emails, I was motivated to comment, and I suspect others felt the same.
Anyway, here’s another vote for condemning this behaviour but forgiving them this time.
I’ve deleted all the text of the email I’m replying to for fear of annoying our poor digest readers. This stupid phone only allows me to quote all or none.
Peter Shute
Hi Mike,
You wrote: “I take your point about ‘slippery slopes’ but I’m still surprised at the tone of some replies, recommending boycotts and suggesting those of us that decided to contribute to the project may never see our money again (or the DVD we expect to have paid for), which is what I was getting at with the ‘mean spirited’ reference.”
That’s fair enough, but obviously many birding-aus users (even those like me who simply browse the archives, and yet still found ourselves spammed by Balangara) are particularly aggravated by unsolicited commercial email of any kind. While the hostility of some responses may appear mean-spirited, the principle they are defending is clear: many people do regard spam as an invasion of privacy, regardless of the motives of the sender, and are therefore resentful – quite understandably, in my view. In an age where millions of people seem happy to give away their personal information via facebook, etc, many more are just as vehemently protective of it. We don’t know who Balangara is, we don’t know what they intend to do with the email addresses they’ve harvested (probably nothing, but that’s not the point) and are suspicious and angry about the intrusion.
Also, birding-aus has long held a policy that messages should not be of a strictly commercial nature. That’s certainly been stretched pretty thin in recent times (as noted earlier), but the ironic thing is that in this instance a one-off message communicated via birding-aus generally would have caused a great deal less angst than individual messages being sent to thousands of birding-aus subscribers and occasional contributors alike. Of course, Balangara may not have known that, but I suspect after this furore it’s a mistake they won’t make again.
Cheers
Andrew
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Hi Paul
I’ve been careful (I hope!) not to say that I think Mark / Balangara have complied with the Act, just that you could read (into the guidelines at least) that what Mark had done was okay. Or at least understand how he thought what he had done was okay.
I don’t know, but my suspicion is, he thought he was doing the right thing and we would be grateful to be informed about the project – but clearly he has not quite hit the mark. In the same way no-one here can be sure that Mark deliberately set out to flout the Act in order to promote his project. The intended point of my post, that you have taken the time to add you experience to, is that the law isn’t always easy to interpret, confusion often reigns, and the ‘clear’ illegality of the promotion might not seem so clear in the hands of a good lawyer – but I hope that the ire of people on the forum does not lead to that being tested.
I take your point about ‘slippery slopes’ but I’m still surprised at the tone of some replies, recommending boycotts and suggesting those of us that decided to contribute to the project may never see our money again (or the DVD we expect to have paid for), which is what I was getting at with the ‘mean spirited’ reference.
Thanks for you efforts to explain the Act.
Cheers
mjh
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I am not sure that I would describe myself as an “expert”, Mike – however, as I said in my previous posting, a good proportion of my business is involved with working with companies on sending bulk commercial email and ensuring that they comply with the Spam Act 2003. I am not a lawyer, but I have read the Spam Act 2003 from end to end (which as you mention, is somewhat “sad”). I have also been involved with litigation involving the Spam Act as an advisor, so I do consider that I have a reasonably solid working knowledge of the subject.
Before I proceed, I must point out that I have no personal problem with Mark, Balangara or the Lyrebird DVD project. I am simply commenting on the (as you say) naïve approach to email marketing – in particular, how it relates to the Spam Act 2003. From what I understand, Balangara’s project is a very worthwhile undertaking. That being said, I fundamentally disagree with the approach that Balangara have taken with this latest email campaign. For those that say that because it is a worthwhile project, then we should forgive any “minor” discretions with respect to the law, I also have a fundamental problem – that is simply saying that the end justifies the means and, in my opinion, that is rather a slippery slope.
Mike, the point that you raise on inferred consent is at the nub of the issue. This is the section of the Act that causes the most confusion and as a result, the most problems. Because of this most businesses considering undertaking a commercial email campaign will rely on the alternative means of garnering consent, identified in the Act as express consent. With express consent, the business simply asks the customer at the time of gathering the email address whether they consent to receiving marketing email or not. Since many businesses have databases of email addresses that pre-date the Act, they will often conduct a pre-campaign where they email their customers to ask permission to send marketing material by email. A little long-winded, but it does allow the business to engage with their customers with the knowledge that the customers have given their consent to receive marketing communications.
In your posting you refer to the section of the Act (or rather the guide to the Act) which mentions conspicuous publication of an email address. This is usually interpreted as businesses or individuals that have published their email addresses with the intention of receiving email related to the function or role. You’ve already mentioned the plumbing example from the guide, but other examples that could be considered include the author of a book providing an email address to contact them, a business that publishes a web site that includes a list of employees and their contact details, an individual that publishes a blog and includes their email address for feedback. Even in this situation, the test would be whether the person or organisation could reasonably expect to receive an email of certain content – generally the test for the content would be whether that content is related to the function or role that is included with the email address. Your assertion is that we, as birding-aus subscribers, should reasonably expect to receive bird-related email to our email addresses, and at first glance this is patently true. HOWEVER, the fundamental point of this section in the Act is “conspicuous publication of an email address” – and this is where your assertion fails. None of us, as birding-aus subscribers, have conspicuously published our email addresses for the purpose of receiving unsolicited email. Rather, we have subscribed to an email list service and fully expect to receive emails FROM that service. The fact that our email addresses are included in the emails sent out by birding-aus when we post on birding-aus is incidental and does not in any reasonable form constitute conspicuous publication. Nor does the fact that our email addresses appear in the web-based birding-aus archives (which are actually not maintained by Russell, the birding-aus list owner).
The second significant point you raise in your posting (which reflects what I said in my previous posting) is that an existing relationship constitutes inferred consent. This is the approach that many businesses adopt, but the guide to the Act specifically points out that single transactions (the purchase of a t-shirt, groceries, a concert ticket and so on) would be unlikely to constitute an existing relationship.
In the same section in your posting you refer to a couple of points that you suggest may be considered as inferred consent when it comes to the Balangara situation, these points being that we are all subscribers to a service, and that we are all registered users of an online service. Whilst these points are perfectly true and valid, they are the basis that birding-aus operates – in other words, birding-aus sends email to subscribers with the certainty of knowing that they are not contravening the Act. The intention of these points is to allow the operators of subscription services and online services to communicate with their subscribers. The intention of these points is not to allow a person or entity, that is not the operator of a service, to communicate with the subscribers to that service, regardless of whether that person or entity is also a subscriber to the service. If that were allowed, then anyone could send unsolicited email to any list, simply by joining that list – a concrete example may serve here. Telstra maintains a list of subscribers for a particular service, Optus subscribes to that service and then sends an email to the list of Telstra services promoting a competitive service, perhaps at a cheaper rate – this is prohibited under the Act.
Also in your posting you discuss obtaining email addresses – specifically citing the example of lists generated manually (for example by reviewing websites). The important part about this is that the email addresses must be conspicuously published as described earlier. The intention of this part of the Act is that it is not illegal to look up company web sites, for example, and use those email addresses in commercial email campaigns, provided all the requirements around conspicuous publication are met. The Act and the guide go on to specifically ban the use of harvested email addresses (whether automatically or manually obtained). It would likely be a reasonable interpretation that the collection of email addresses from emails received by birding-aus subscribers or the collection of those same emails addresses from the web-based archives does in fact constitute email address harvesting, and that those email addresses cannot be used for the purposes of sending unsolicited commercial email.
I need to a couple of points not raised by Mike, but raised by Phillip Veerman in an off-list email to me. Phillip suggested that from my previous posting it could be interpreted that birding-aus subscribers that send off-list messages to other birding-aus members would be considered to be guilty of spamming. No, this is not correct – spam is specifically unsolicited email of a commercial nature and not a personal communication. Secondly, Phillip suggested that the email sent by Balangara could not be considered spam because it wasn’t fraudulent in nature. Once again this is not true as the definition of spam is simply unsolicited email of a commercial nature. Certainly scams and other emails making fraudulent offers are spam, but they are a subset of all spam. Another way of looking at it is that not all spam is fraudulent.
Incidentally, I don’t consider myself “mean spirited”. I am simply participating in the debate on spam. I have not reported Mark or Balangara to the ACMA and neither will I do so.
Paul Dodd Docklands, Victoria
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Mike,
There is a big difference between contacting someone via their email address or posting to an existing mailing list (e.g. Birding-Aus) and subscribing someone to a mailing list without their consent – *that* is mean-spirited.