The Department of Internal Affairs is seeking further financial penalties against alleged spammer Brendan Battles in its third statement of claim against the man.
The Department of Internal Affairs is seeking further financial penalties in the High Court against alleged spammer Brendan Battles.
The department’s Anti-Spam Compliance Unit is seeking $200,000 against Mr Battles and $500,000 against his company Image Marketing Group, in the department’s third statement of claim against both director and company.
This meant the total maximum penalty amount could be $1.5 million for IMG and $600,000 for Mr Battles, Department of Internal Affairs spokesman Trevor Henry said.
The department’s third statement of claim comes after a formal warning issued to IMG by the Australian Communications and Media Authority for breaching Australia’s anti-spam laws, the department said.
In February this year, the department lodged two statements of claim in the High Court in Auckland alleging that in February and March 2009, Mr Battles and IMG sent more than 44,000 SMS messages to mobiles on Telecom and Vodafone networks, inviting recipients to buy an antenna booster.
The department claimed that the messages were unsolicited, did not include accurate sender information and did not contain an unsubscribe facility that could be used by the recipient at no cost, contravening respectively sections 9, 10 and 11 of the Unsolicited Electronic Messages Act 2007.
The department’s second statement of claim alleged that Mr Battles and IMG contravened section 9 of the Act when they sent at least 43 unsolicited commercial emails to computers in New Zealand, representing a sample of more than 510,000 substantially similar emails sent or caused to be sent by the defendants between December 14 and 15, 2009.
The department's third statement of claim related to IMG’s marketing of a database of about 50,000 email addresses through an unsolicited electronic message, the department said.
A businessman who had purchased and used the database for marketing had received assurances that it complied with the Act and that the holders of the addresses had consented to receiving commercial electronic messages and that if such messages contained an unsubscribe function, they would comply with the Act, the department said.
The businessman received more than 400 complaints from his use of the database, and the department’s anti-spam compliance unit received complaints also, the department said.
Senior investigator Toni Demetriou said some businesses who had purchased IMG’s databases had been fined for breaching the Act. He said consent was needed before sending commercial electronic messages and such messages must be relevant to the business, role or functions of the recipient in a business or official capacity.
“There is a misconception and a misrepresentation made that, under the Unsolicited Electronic Messages Act, an individual or organisation can send business-to-business commercial electronic messages. This is not so.”
The department has applied for an injunction to prohibit Mr Battles from sending such messages ending with ‘.nz’ without obtaining prior consent and from selling NZ databases with electronic addresses when holders have not consented to receiving such messages, the department said.
IMG to contest claims
Mr Battles told NBR he would contest the department’s claims and that NBR’s call was the first he had heard of the third statement of claim.
He said the department’s first statement of claim was incorrect, except for the claim referring to the lack of free removal of subscription. Mr Battles said the company had offered free removal via the website in the message and that it was almost impossible to include this information in the characters available in SMS messages.
Mr Battles said of the department’s second claim that his company had found every complaint the department sent through to be within deemed consent and in compliance with the law. He said the department had not sent through several complaints.
He said of the third statement that he had found no evidence that his company had sold databases as opt-in and had requested any such proof from the department when it was mentioned to him about two years ago, which had not been provided.
“We send customers to the DIA site all the time to make sure that they read the law and stay in compliance, so they don’t get themselves in trouble.”
Mr Battles said he felt he was being made an example of by the department and that there was a personal element to the claims.
“We sold a product that was misused, and they’re trying to come after me for fines,” he said.
Mr Battles said he now lives in the United States.
Mr Henry said the department would not comment as it was close to the first call of October 5, when the High Court would consider the department’s statements of claim, and because it was an ongoing investigation.
NBR previously reported on Yellow’s injunction against Mr Battles, preventing him from selling a database Yellow claimed had been illegally copied, an injunction which IMG and Mr Battles did not comply with on December 15.
AJ Park, representing Yellow, partner Kim McLeod said the proceedings had been settled and that the settlements were confidential but did include final orders.
ComputerWorld has reported that Mr Battles was mentioned in investigative journalist Brian McWilliams’ book Spam Kings, in which Mr McWilliams' said Mr Battles had reportedly sent more than 50 million spam messages a day in the United States.
Mr Battles said that he was in the book because he had worked with the author and had been given credit for his help.
