Addressing a technology think tank at the ACLA National Conference in Sydney on Thursday (11 November), Middletons partner Mark Feetham and special counsel Jim Lennon warned delegates about the "tsunami of spam" that continues to hit organisations - at a rate of 183 billion emails per day - and the risks to marketing departments in particular of breaching the Spam Act and attracting the attention of the regulator, the Australian Communications and Media Authority (ACMA).

"As lawyers we're aware of the technical issues," said Lennon. "But your marketing department sees it [sending out mass emails] as an opportunity."

Such opportunity exists in part due to a combination of economics and technology. For the cost of a 50 cent stamp, marketing departments can obtain the required lists and bandwidth to send out approximately 62,000 emails, according to Middletons.

Lennon warned that it's the legal department's responsibility to ensure that their marketing departments understand the necessity of consent, accurate sender information and a functional unsubscribe button when sending out emails.

He added that should a breach of the Spam Act occur, ACMA will look to the legal team to see what steps have been taken to avoid such a breach. Therefore, it's essential that in-house lawyers retain documentation about any training and advice offered to their business units.

Lennon also commented that ACMA takes a particularly robust view when it comes to enforcement of the Spam Act, with fines of up to $220,000 potentially imposed on organisations for a single contravention.

The Middletons lawyers also warned delegates about enforcement under the Do Not Call Register Act and advised that organisations - as well as any contracts with outsourced telemarketers - provide for a provision that contact lists are "washed" every 30 days - meaning they are filtered through the Do Not Call Register available online.

With 9.5 million Australians now using Facebook, according to Middletons, Feetham also outlined the risks associated with employees using social networking and the need for controls and policies to be initiated by legal departments.

Such risks include the misuse of company trademarks and IP, the disclosure of confidential information, harassment, defamation of staff and misleading or deceptive conduct.

"If people are sitting on Facebook and they're slagging your company, there's not a lot you can do unless you have some controls in place," he said.

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