To: "'Mike Honeyman'" <>, <>
Subject: Balangara
From: "Paul G Dodd" <>
Date: Sat, 19 Nov 2011 21:53:48 +1100
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

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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