The Wise Monkeys

I will allow the letter to do all the talking on this one.  A must read

update (skelm): To clear a few things up. This letter was sent to the Australian Communications and Media Authority and the Minister of Communications on behalf of 4 Wise Monkeys on the hopes that the Australian Communications and Media Authority will take some action against DC Marketing

Dear Sirs,
 
RE: POTENTIAL BREECH OF THE SPAM ACT
 
We are a community legal centre that, inter alia, undertakes financial literacy workshops for young people and advises them in regards to their rights in respect of debt and credit matters.  We also have within our charter the ability to take legal action, if and when we feel that young people's rights are being infringed or they are being misled.
 
We also in this matter act for a group of individuals who run the website 4wisemonkeys.com.
 
The main purpose of the website of our clients is to promote and disseminate information on the practices of a company known as DC Marketing Europe Ltd (“DC Marketing”).

This company routinely rings consumers mobile phones for a very short period of time, so as to leave a caller ID number which when rung provides a message directing the consumer to a 1900 service which generates revenue for DC Marketing.
 
On our clients website is a list of numbers that DC Marketing uses as its caller ID.  As a result of this, when a consumer searches for one of these numbers in search engines, our clients website is displayed. 
 
In May 2006 to date, over 3,000 individuals have searched for one of the numbers used by DC Marketing and as a result of the search have clicked onto our clients’ website.  As such, it is clear that this is a widespread practice by DC Marketing.
 
We wish to make a formal complaint against DC Marketing under the Spam Act 2003. 
 
We note that section 6 of that Act states, inter alia,
 
“ (1)  For the purposes of this Act, a commercial electronic message is an electronic message, where, having regard to:
                     (a)  the content of the message; and
                     (b)  the way in which the message is presented; and
                     (c)  the content that can be located using the links, telephone numbers or contact information (if any) set out in the message;
it would be concluded that the purpose, or one of the purposes, of the message is:
                     (d)  to offer to supply goods or services; or
                     (e)  to advertise or promote goods or services; or …”
 
Given this definition, we feel the bulk dialling of numbers, solely to leave a caller ID number is a commercial electronic message for the purposes of the Act. 
 
In this respect, the word message is defined by section 4 of the Act to be
“"message" means information:
                     (a)  whether in the form of text; or
                     (b)  whether in the form of data; or
                     (c)  whether in the form of speech, music or other sounds; or
                     (d)  whether in the form of visual images (animated or otherwise); or
                     (e)  whether in any other form; or
(f)     whether in any combination of forms.”
 
As such a phone number presented on a phone is capable of being a message. 
 
Having regard to the matters in section 6 (1) (a), (b) and (c) it is clear that the caller ID is intended to be presented as a message to return a call to the said caller ID number.
 
Upon calling one of the numbers, a list of which are supplied as Schedule One, promotional material is presented in verbal form to the caller.  It is clear that the intention of the caller ID message is to offer the supply or promote the supply of services, which is restricted under section 6 (1) (d) and (e).
 
Given that definition of section 6 of the Act is so satisfied, section 16 (1) of the said Act states that:
 
“(1)  A person must not send, or cause to be sent, a commercial electronic message that:
                     (a)  has an Australian link; and
                     (b)  is not a designated commercial electronic message.”
 
The caller ID details are Australian numbers and they are directed at Australian mobile phones, a link to Australia as defined in section 7 of the Act is satisfied. 
 
Furthermore, Schedule One of the Act does not specify that a message of this type is a designated commercial electronic message as Clause 2 (2) (b) of the Schedule states that “assuming that none of that additional information had been included in the message, the message would not have been a commercial electronic message;.”  As it is our clients contention that the caller ID number by itself meets the requirements under the Act, we contend that the sending of the caller ID details is done so in breech of section 16 (1) of the Spam Act 2003.
 
We note that we do not have standing to pursue this matter on our own authority and as such we therefore request the Australian Communications and Media Authority to write to the company concerned in order to obtain an undertaking from them stopping these unsolicited messages.
 
Given the significant amount of messages being sent by DC Marketing we would ask that you place priority on this request and as such we look forward to your reply on an urgent basis.

Sincerely Yours,