ACMA vs Hyarchis - Facts Sheet

We put together some facts to outline how busy our Communications and Media Authority must be. 

As described in older articles - Hyarchis Company Ltd, a mobile content provider, made it into the list of the "bad guys" onto ACMA's web page and was even "featured" in a nationwide ACMA media release.

Here are the facts:

- Hyarchis was accused of allegedly sending 5 (!) Spam messages to mobile phones without the recipient's consent. The accusation originated from the account holder's complaints to ACMA.

- Out of these 5 complaints, 3 came from the same account holder (!), one came from an originator that did not belong to Hyarchis (but when accusing someone and not having enough evidence, why not throwing some more cases in so it looks bigger...?), and another one would not even release his phone number so no-one can really investigate if he EVER got a message anyway.

- Hyarchis provided evidence of inferred consent it received from the irate customer with 3 complaints. The customer obviously repeatedly used Hyarchis' free services and agreed to receive further marketing anyway.

- ACMA had to drop the charges in regards to the "anonymous" and the "not related number" complaints, so they focused on the irate one who complained three times.

- ACMA issues a formal warning and bases this on the above, as well as on "extensive correspondence" they had with the account holder (whose boyfriend/girlfriend at ACMA is it...?)

- ACMA fires out a Media Release, proudly announcing they just busted a spammer who sent 3 (solicited) messages to ONE customer.

Congratulations! What a benefit for the general public! 

Well I receive about 30 Spam mails a day, so that would make 10,950 ACMA Media Releases a year from the Spam I receive alone...

ACMA Formal Warning lacks justification

Here is the newest update from the ACMA vs Hyarchis case:

According to undisclosed but reliable sources, ACMA has been contacted by the Sydney Morning Herald as well as the Communications Alliance to comment on the case and defend the justification of the formal warning.

The given justification on the Warning itself reads as follows: "The unique nature of this electronic address (0411 111 111), however, has not been identified by Hyarchis as one which could be potentially entered by parties who are not the account holder of the electronic address."

This justification is obviously not sustainable, as it would declare all web marketing for mobile products using a mobile number entry mechanism Spam.

Confronted with this fact, ACMA representative Julia Cornwell McKean simply turned around and stated that "the message sent was not a factual message."

???

Hyarchis sent us the whole correspondence, and nowhere ACMA refers to the content of the message, but simply to the fact "Hyarchis has not identified who entered the mobile phone number."

Sounds a lot like authority arbitraryness?

ACMA makes web marketing illegal

We received an Email from Hyarchis Company Ltd who are a provider in the SMS business. They were subject to a rather random decision by ACMA, issuing a "Formal Warning" for an alleged breach of the Spam Act. 

Not only that this Formal Warning is in relation to only ONE complainant (where is the public interest in that?) - the scary part is that ACMA obviously does not understand the businesses it regulates, as the warning was issued for the sending of an obligatory message.

Hyarchis sent out a confirmation message to a customer as it is required not only by carrier guidelines, but also by the so-called MPSI-Scheme - which has been designed by carriers, aggregators and ACMA themselves.

One also has to ask himself - is this the big issue they currently deal with? I mean, if a "Formal Warning" for the sending of one single message makes it into a government authority's Media Releases - what the hack are these guys doing all day?

Here's the mail we received from Hyarchis:

"We are a content provider in the MPSI. We are an active member of the Communications Alliance. We comply with all laws, industry codes and regulations in this country.

Despite all this, we were blamed publicly today by ACMA in a Media Release where we are accused of marketing spam. This is absolutely ridiculous, as all we were doing was following the industry guidelines.

Let us explain: When soneone in Australia surfs the web and in particular free sites, then these are - as you surely know - financed by advertising. WE do - as many players in the industry - spend a significant amount of our budget on web marketing to attract new customers to our services.

If a customer comes across our offer and is attracted, the MPSI industry guidelines request the folllowing steps:

(a) Customer has to enter phone number

(b) customer has to tick off Terms and Conditions

(c) Customer has to click on "send" button

Once that all has been fulfilled, the MPSI guidelines require that a message is sent to the customer to ask him to confirm the request. This step is compulsory to ensure that the real account holder received the compulsory message as described above.

Only once he confirms this by sending another message from his handset, or entering a unique code (which was sent to his handset) into the web marketing, he will be entered into the service.

In our case, obviously someone who was not the account holder though it was a funny idea to enter a random number (0411 111 111) into one of our web ads. Of course, the real account holder received the compulsory message as described above.

The customer immediately complained to ACMA. ACMA then started an investigation and obviously - after extensive correspondence - found us guilty of spam for sending this compulsory message. The reasoning was as follows:

"The unique nature of this electronic address (0411 111 111) however was not identified by Hyarchis as one which could be potentially entered by parties who are not the account holder of the electronic address."

We (Hyarchis) replied inter alia as follows:

"(...) It lies in the nature of the medium that abuse by persons using the website or web advertising cannot be entirely avoided by the advertising company, meaning it is impossible for advertisers to stop incorrect mobile phone numbers being entered into web advertising or web pages (by mistake or on purpose and by persons known or unknown).

The advertising company will, in accordance with the guidelines, send am essage to the number entered into the web ad. If and only if the customer then proceeds as instructed in the message, will the customer be entered into a service."

ACMA did not find this reasonable. The decision was furthermore based on "significant contact" ACMA had with the account holder - which we do not see as a legal foundation, but more as a factor that supports our view that the decision has not been made on an objective basis.

However, we are not surpised the account holder had "significant contact" with ACMA, as his mobile number is extremely "fancy" - and therefore would be frequently entered by "funny people" into web ads.

BOTTOM LINE: Everyone who wants to do web marketing in Australia from now on has to employ hundreds of thousands of staff out there to sit besides every soul surfing the web here 24/7/365. As soon as they enter a phone number into a web ad, they have to verify that that they are the account holder. The process is simple: They just have to ask for a photo ID and the customer's contract with the carrier, so the marketer can prove the person entering the number is the account holder."

We agree with Hyarchis - this is ridiculous.