First SMS Spam Act case

In Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No2) [2009] FCA 887, the Australian Communications and Media Authority (ACMA) succeeded in obtaining injunctions and declarations against a number of parties involved in the ACMA’s first SMS spam case before the Federal Court. The matter relates to the sending of unsolicited commercial SMS messages.

Justice Logan gave default judgment on 14 August, against five respondents, Mobilegate Ltd, Winning Bid Pty Ltd, Mr Simon Anthony Owen, Mr Tarek Andreas Salcedo and Mr Glenn Christopher Maughan, concerning breaches of the Spam Act 2003.

The action was in relation to premium SMS chat services. The ACMA alleged that the respondents were engaged in a complicated scheme to obtain mobile phone numbers from members of dating websites, using fake member profiles, in order to send commercial electronic messages by SMS.

Unsolicited messages were then sent to the mobile phone numbers offering the opportunity to chat via SMS using services described as the ‘Safe Divert’ or ‘Maybemeet’ services. The chat was not offered by genuine members of dating websites but employees of Mobilegate Ltd and Winning Bid Pty Ltd. Consumers were charged up to five dollars per message.

A hearing as to penalty is pending .

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