One of the most significant obstacles in combatting unsolicited marketing and spam is the borderless nature of the Internet – it has no boundaries. This means that spam can easily travel from one country to the next, making it difficult to track down senders and enforce unsolicited marketing and anti-spam laws. Even if regulators can track down a spammer or service provider overseas, they often lack the ability to enforce local spam laws in the overseas country.
This can be a frustrating state of affairs for consumers and marketers alike.
Consumers become increasingly frustrated with unsolicited marketing and the seeming inability for the regulator to enforce anti-spam laws.
Marketers who comply with the laws and best practice may be left frustrated at the compliance disparity between themselves and overseas entities.
One of the functions of the Australian Communications and Media Authority (ACMA) is to liaise with regulatory and other relevant bodies overseas and work together for the prohibition or regulation of unsolicited telemarketing calls and direct marketing, including spam.
ACMA and its Canadian counterpart, the Canadian Radio-television and Telecommunication Commission (CRTC) have united to combat unwanted telemarketing and e-marketing.
ACMA and CRTC signed a new Memorandum of Understanding (MoU) on 18 May 2017 that aims to improve both organisations’ capabilities to enforce anti-spam and telemarketing rules. MoUs are a formal avenue used by government agencies domestically and across the globe to indicate a common goal and to establish a framework for streamlined information sharing.
According to Richard Bean, ACMA’s acting Chairman, “the use of increasingly complex and widespread transnational networks to undertake e-marketing and telemarketing [makes] international cooperation essential to respond to unlawful practices.”
The ACMA-CRTC MoU establishes a framework that will assist both organisations to reduce unsolicited marketing messages to the citizens of both countries. The MoU formalises aspects of long-standing cooperation between the ACMA and the CRTC, including making the ACMA-developed Spam Intelligence Database (SID) software available to CRTC. SID is a spam analysis software for reports and complaints handling and assists agencies in processing spam reports from citizens.
In effect, the MoU, which also encourages innovation between the agencies, will allow for the exchange of intelligence and information to assist in investigating and enforcing unsolicited marketing infringements.
ACMA has similar MoUs in place with the New Zealand Department of Internal Affairs and with members of the Unsolicited Communications Enforcement Network (UCENet) (formerly known as the London Action Plan).
With the increasing use of MoUs by regulators internationally, infringement of direct marketing and spam laws will become easier to investigate and enforce. It is, therefore, crucial for marketers to understand their spam and direct marketing obligations both locally and internationally. In Australia, organisations can be fined for breaches of the Spam Act, even if the commercial electronic messages are sent by third-party service providers located overseas on the basis that it ‘caused a commercial electronic message to be sent’.