The quantity of mobile phone spam never ceases to amaze me. Considering that the medium isn’t free like email, conversion rates must be particularly high given the number of commercial text messages, SMS bait schemes and pre-recorded VoIP calls that seem to be plaguing Australian mobile networks.

Now it looks as if the Australian Communications and Media Authority (ACMA) is finally doing something about it, today announcing that it has commenced proceedings under the Spam Act 2003 (Cth) (Spam Act) against three Australian companies who used unsolicited text messages to promote online dating services. When a hapless (or dateless) victim replied, they were charged up to $5 per message — presumably with an unsubscribe policy worse than the United States army. Interestingly, the complaint also alleges the criminal charge that the respondents obtained a financial advantage by deception, in the form of paid signups to the online dating sites procured by fake dating website profiles. By virtue of the deception, ACMA also alleges a contravention of the Trade Practices Act 1974 (Cth) (TPA).

The case is noteworthy for at least three reasons. First, if successsful, it would represent ACMA’s largest (but not, as has been reported, its first) prosecution for spam text messages (which fall within the definition of ‘electronic message’ in s 5 of the Act, which includes messages sent ‘to an electronic address in connection with … a telephone account’). Second, it shows how the Spam Act and Trade Practices Act can work together to enjoin misleading scams propagated by electronic means. Third, some serious penalties are likely to flow — given that the penalties are $1.1m per day per contravention, perhaps even higher than those ordered by Nicholson J against Clarity1 Pty Ltd in 2006 (AUD $4.5m). Of course, the significance of the action can easily be overstated — remember that the vast majority of mobile phone spammers are (a) not incorporated entities with convenient bundles of ASIC reports in their name; and (b) based overseas, well beyond the reach of ACMA’s penalty notices and the Spam Act.

This action follows ACMA’s recent success against no less a carrier than Optus Networks Pty Ltd, which was yesterday fined $220 000 for contravening the Spam Act. The spam took the form of SMS messages sent to customers’ mobile phone that promoted the Optus ZOO service.