Injunctions, Declarations Granted in Landmark SMS Spam Case
09 November 2012
The Australian Communications and Media Authority has obtained injunctions and declarations against a number of parties involved in the ACMA’s first SMS spam case before the Federal Court. The matter relates to the sending of unsolicited commercial SMS messages.
Justice Logan gave default judgment on August 14 against five respondents, Mobilegate, Winning Bid, Mr Simon Anthony Owen, Mr Tarek Andreas Salcedo and Mr Glenn Christopher Maughan, concerning breaches of the Spam Act 2003.
“This is the first SMS spam case that the ACMA has brought before the courts,” said Chris Chapman, chairman of the ACMA. “The significant resources that the ACMA has put into this matter, again demonstrates our commitment to protecting Australians against illegal conduct.”
The ACMA instituted proceedings against eight respondents in the Federal Court in Brisbane in December 2008 alleging contraventions of the Spam Act 2003 and the Trade Practices Act 1974 in relation to premium SMS chat services.
The ACMA alleged that the respondents were engaged in a complicated scheme to obtain mobile phone numbers from members of dating websites, using fake member profiles, in order to send commercial electronic messages by SMS.
Unsolicited messages were then sent to the mobile phone numbers offering the opportunity to chat via SMS using services described as the ‘Safe Divert’ or ‘Maybemeet’ services. The chat was not offered by genuine members of dating websites but employees of Mobilegate and Winning Bid. Consumers were charged up to A$5 per message.
In delivering his judgment Justice Logan noted that the conduct alleged disclosed “sustained and systemic violation of statutory prohibitions rather than a mere isolated aberration.”
A hearing as to penalty is pending against the five aforementioned respondents, and a further hearing is scheduled to commence on November 30 against the remaining three respondents.
