In the first prosecution of its kind under the Spam Act 2003 (Cth) (‘Spam Act’), Nicholson J of the Federal Court of Australia yesterday found Clarity1 Pty Ltd and its managing director to have contravened provisions of the Act.

Inter alia, the Australian Communications and Media Authority (‘ACMA’) submitted to the Court that in the twelve months after the Spam Act commenced in April 2004, Clarity1, through its director, sent out over 56 million mostly unsolicited commercial emails.

Justice Nicholson rejected the company’s defence that the recipients of emails had consented to receive them. His Honour further rejected the defence that the company could use harvested lists acquired before the Spam Act commenced to send spam emails at any time:

‘The fact that address-harvesting may have occurred at a time when no such prohibition was in the law, does not prevent the application of the provision in its term from the date it came into force’

‘This has been an important test case for the Spam Act’, said Chris Chapman, ACMA Chairman. ‘Justice Nicholson’s findings should give Australians confidence in the effectiveness of this important legislation. … This case provides a strong indication to Australian spammers that their activities will be vigorously pursued by ACMA’, said Mr Chapman.