Our ref: 2004-134-01

The Manager Spam and Do Not Call Register Section The Department of Communications, Information Technology and the Arts GPO Box 2154 CANBERRA  ACT 2601

Dear Sir/ Madam

Discussion Paper: Unsolicited Commercial Faxes or ''Fax Spam''

The Office welcomes the opportunity to comment on the Department of Communications, Information Technology and the Arts (DCITA) Discussion Paper entitled ''Unsolicited Commercial Faxes or ''Fax Spam'''' (the Discussion Paper). 

The Office of the Privacy Commissioner (the Office) reiterates the comments made in our submission to the Spam Act 2003Review Issues Paper in February 2006.  A full copy of this submission is available on the Office''s website at http://www.privacy.gov.au/materials/types/download/8861/6654 .

In the Office's experience, the information used to send spam facsimiles is not typically personal information, as it is usually a phone number only.  Further, the Office understands that most facsimile spam is sent to businesses rather than individuals although this may have an impact on the personal affairs of an individual where they are running a small businesses from their home and the business shares a fax number with the individual''s home number.

For these reasons, it is unlikely that the Privacy Act 1988 would apply in relation to most incidents of facsimile spam.  However, the Office believes unsolicited commercial faxes may cause difficulties for recipients and therefore there would appear to be a case for requiring the provision of an unsubscribe mechanism that is easily actioned and does not incur unreasonable costs to do so.

In its submission to DCITA on a possible Do Not Call Register in December 2005,1 the Office recommended that the legislative response include some mechanism to deal with facsimile contact, if this is not addressed through the review of the Spam Act 2003 (the Spam Act).  The Office believes that the Discussion Paper now provides a welcome opportunity for this important issue to be considered.

The Office considers that the exclusion of facsimile spam from the Spam Act may detract from the ability of the legislation to reduce the number of unwanted commercial electronic messages and suggests that these activities are now brought within the legislative protection of the Spam Act.

The Office would be available to discuss these comments further with the Department if necessary.  The contact officer is Linda King on telephone 9284 9820 or Brian Kent on telephone 9284 9773.

Yours sincerely

Andrew Solomon

Director, Policy

17 September 2007

Endnotes

1 Available on the Office''s website at http://www.privacy.gov.au/materials/types/download/8656/6501 .