FC: Australia may legalize spamming, from Electronic Frontiers Aust.

[Declan McCullagh <declan () well com>]

[So just as yet another bill is introduced in the U.S. Congress to ban 
spam, Australia is about to legalize it (if the below summary is accurate). 
So U.S. spammers rent server space in Australia and continue to clutter our 
mailboxes. We need technical anti-spam solutions: We can't trust 
governments. --Declan]

*******

From: Irene Graham <rene () pobox com>
To: declan () well com
Subject: Australia to legalise spamming
Date: Mon, 15 May 2000 11:26:03 +1000

Declan

FYI below. Feel free to distribute it or an edited version on politech if
you think it's of potential interest to your readers. Greg (the writer
below) knows I'm sending it to you.

Regards
Irene

======Forwarded Message======
Date: Sun, 14 May 2000 20:27:28 +1000
From: Greg Taylor <gtaylor () efa org au>
Subject: Australia to legalise spamming

>From the same government that tried to censor the Internet last year comes
new legislation that effectively gives the green light to spammers, under
the guise of direct marketing.

The Privacy Amendment (Private Sector) Bill 2000 was tabled in the
Australian House of Representatives in April 2000.  The purpose of the Bill
is ostensibly to extend the existing Privacy Act to the private sector.
The Bill enshrines in legislation a modified version of the voluntary
National Privacy Principles released by the Privacy Commissioner in
February 1998.   Principle 2.1 (see below) provides an exception to the Use
and Disclosure Principle for direct marketing purposes.

The draft Bill also provides exemptions from the Act for:
- employee records
- related bodies corporate
- small business (defined as revenue less than $A3million)
- media
- political parties

Pre-existing data is outside the scope of the law, and there are serious
deficiencies in relation to health information.  It is unlikely that this
legislation will satisfy the EU Directive on Data Protection.

To put it bluntly the Bill is a disaster.

A House of Representatives Committee is now undertaking an inquiry into the
Bill and receiving submissions from interested parties.  Although the
formal closing date for submissions was 12 May, the Committee will probably
accept submissions until the end of May.  Public hearings are also planned.
 Submissions may be sent by E-mail in text or Word format to:

The Secretary
House of Representatives Standing Committee on Legal and Constitutional
Affairs
Parliament House
CANBERRA ACT 2600.
AUSTRALIA
Telephone: +61 2 6277 2358
Facsimile: +61 2 6277 4773
Email: laca.reps () aph gov au

EFA and a number of other privacy advocates are preparing submissions.
Although most of us want the Bill to be rejected by the Parliament, the
reality is that the Bill is likely to pass in one form or another.  The
focus therefore is in pointing out the deficiencies in the Bill so that the
opposition parties, who have the balance of power in the Senate, might
succeed in incorporating amendments to eliminate the worst features of the
Bill.

Submissions, no matter how brief, from interested persons will be
helpful.  Comments addressing the spamming provisions would be particularly
helpful.

There is no paricular format required, just an E-mail in the form of a
letter to the committee at the above address.

Information about the inquiry, including a link to the Bill:
   http://www.aph.gov.au/house/committee/laca/Privacybill/inqinf.htm

National Privacy Principles 1999:
   http://www.privacy.gov.au/publications/index.html
(A modified version of these principles is incorporated in the Bill)


Greg Taylor
Vice-chair
Electronic Frontiers Australia
http://www.efa.org.au

---------------------------------------------------------------------

[Extract from the Bill endorsing direct marketing use of personal data]

139 At the end of the Act
Add:
Schedule 3--National Privacy Principles
........

2 Use and disclosure
2.1 An organisation must not use or disclose personal information about an
individual for a purpose (the secondary purpose) other than the primary
purpose of collection unless:
(a) both of the following apply:
(i) the secondary purpose is related to the primary purpose of collection
and, if the personal information is sensitive information, directly related
to the primary purpose of collection;
(ii) the individual would reasonably expect the organisation to use or
disclose the information for the secondary purpose; or
(b) the individual has consented to the use or disclosure; or
(c) if the information is not sensitive information and the use of the
information is for the secondary purpose of direct marketing:
(i) it is impracticable for the organisation to seek the individual's
consent before that particular use; and
(ii) the organisation will not charge the individual for giving effect to a
request by the individual to the organisation not to receive direct
marketing communications; and
(iii) the individual has not made a request to the organisation not to
receive direct marketing communications; and
(iv) the organisation gives the individual the express opportunity at the
time of first contact to express a wish not to receive any further direct
marketing communications; or
(d) if the information is health information and the use or disclosure is
necessary for research, or the compilation or analysis of statistics,
relevant to public health or public safety:
(i) it is impracticable for the organisation to seek the individual's
consent before the use or disclosure; and
(ii) the use or disclosure is conducted in accordance with guidelines
approved by the Commissioner under section 95A for the purposes of this
subparagraph; and
(iii) in the case of disclosure--the organisation reasonably believes that
the recipient of the health information will not disclose the health
information, or personal information derived from the health information;
or
(e) the organisation reasonably believes that the use or disclosure is
necessary to lessen or prevent:
(i) a serious and imminent threat to an individual's life, health or
safety; or
(ii) a serious threat to public health or public safety; or
(f) the organisation has reason to suspect that unlawful activity has been,
is being or may be engaged in, and uses or discloses the personal
information as a necessary part of its investigation of the matter or in
reporting its concerns to relevant persons or authorities; or
(g) the use or disclosure is required or authorised by or under law; or
(h) the organisation reasonably believes that the use or disclosure is
reasonably necessary for one or more of the following by or on behalf of an
enforcement body:
(i) the prevention, detection, investigation, prosecution or punishment of
criminal offences, breaches of a law imposing a penalty or sanction or
breaches of a prescribed law;
(ii) the enforcement of laws relating to the confiscation of the proceeds
of crime;
(iii) the protection of the public revenue;
(iv) the prevention, detection, investigation or remedying of seriously
improper conduct or prescribed conduct;
(v) the preparation for, or conduct of, proceedings before any court or
tribunal, or implementation of the orders of a court or tribunal.
Note 1: It is not intended to deter organisations from lawfully
co-operating with agencies performing law enforcement functions in the
performance of their functions.
Note 2: Subclause 2.1 does not override any existing legal obligations not
to disclose personal information. Nothing in subclause 2.1 requires an
organisation to disclose personal information; an organisation is always
entitled not to disclose personal information in the absence of a legal
obligation to disclose it.
Note 3: An organisation is also subject to the requirements of National
Privacy Principle 9 if it transfers personal information to a person in a
foreign country.



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