Simpsons Solicitors

Social Network Media Campaigns and Spam

November 3rd 2009

Facebook was awarded damages of US$711 million by a Californian court on 29 October 2009, in a default judgement against a notorious spammer. This follows an award to Facebook last year of US$873 million against another spammer, and an award to MySpace of US$234 million.

Australian marketers contemplating campaigns using social networking media such as Facebook or Twitter should be aware that Australian and international anti spam laws may apply to their activities.

The Spam Act 2003 (Commonwealth) prohibits marketers from sending even one unsolicited electronic message that advertises or promotes goods or services (Spam), unless the recipient has expressly consented to receiving those messages or consent can be inferred by virtue of a pre-existing business relationship with the sender.

That Act also prohibits the use of address-harvesting software, or a harvested-address list.

Marketers should also be aware that the terms of use of social networking media such as Facebook and Twitter impose prohibitions on any users of those media from posting spam, or from collecting user information using automated means such as bots and spiders.

Additionally, as those terms of use may be governed by foreign laws (for example Californian law), marketers must consider whether foreign laws apply to their campaigns, and whether a foreign-based site may sue an Australian marketer for breaching their terms of use.

Contact Andrew Williamson for more information, or for advice.