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Is it legal for Clive Palmer to text us?

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Many people are annoyed with the texts received from Clive Palmer's party (Image via Wikimedia Commons - edited)

Steven Lopez explains how the annoying text messages people have been receiving from Clive Palmer aren't as illegal as some think.

IT'S ELECTION TIME… you don’t really know when exactly, but you know it must be close.

Just as the retail shops start bombarding you with advertisements and product placements a few months prior to Christmas, politicians and political parties do the same for their special day. Perfect… just perfect.

Everywhere you look, there’s banners and signs. There’s a person at the train station who claims to be the current local member, but you’ve never seen them in the last four years. There’s lots more boasting and roasting in the media from politicians, strategically timed policy announcements, tactically retracted policy announcements. Then there’s the big echo chamber party conferences, the Twitter bots going crazy retweeting tweets 200 times for MPs with only 20 followers or less, and so on.

No matter where we go, it seems we can’t catch a break and then we turn to our phones to seek refuge. We dodge the Facebook ads, we avoid the mainstream media, we silence Twitter.

"DING!", you’ve got a text message.

Why the hell does Clive Palmer have your number? Why the heck is he texting you? This cannot possibly be legal.

I can answer that for you.

Many people are have received text messages from Clive Palmer – or, more specifically, from the United Australia Party – in the last few days. They seem to be going everywhere, from Queensland to Western Australia. I have personally not received any texts myself at all, but I know I’m on the radar, not because I believe he has my number, but because of exactly how the campaign works.

This is what is known as a “scattershot” campaign. Scattershot is taken from what happens when a shotgun is fired. The pellets from the shell go everywhere and, while not very effective or as powerful as a single well-placed bullet, it achieves the same thing by spreading out and hitting everything in the vicinity.

No, I don’t believe Clive or the UAP have your mobile number and no, there’s no electorally supplied list where politicians or candidates can get it, either. They are likely just randomly starting with carrier standard issued numbers and working their way through it and/or purchasing a list of numbers from companies that have collected them. While not very effective (think back to scattershot) and likely quite expensive in the long run, it would definitely hit something. This is why the messages are actually not personalised — they don’t have your name. This makes more sense when you remember that Clive has made it known he intends to run a candidate in every seat.

This is typically a big no-no in Australia because of the SPAM Act (2003). Any entity operating in or out of Australia cannot send unsolicited messages (bulk or non-bulk) to Australians that contain ads to a product or service to anyone, direct or otherwise, without their consent, whether it is email or texts. So, you can imagine a scattershot-like campaign would raise red flags immediately. They also must give you the ability to opt out. If you’ve seen the text messages, you know this isn’t possible.

Naturally, there are exemptions with conditions and there are quite a few of them. Some of them you would look at and think “fair enough” and others may raise an eyebrow or two, but typically those exemptions are not really capitalised on.

Until now, of course.

Political parties are completely exempted from the electronic messages part of the SPAM Act as long as they identify themselves as the sender. That’s right. If they’re a registered political party, they can send you as many text messages as they want. They just need to say they authorised it.

Electronic messages

 

What type of messages are covered by the rules?

 

In general, the Spam Act prohibits sending emails and SMS messages that offer goods and services for sale unless you have previously consented to receive the messages.

 

The Spam Act allows registered political parties to send commercial emails and SMS messages to individuals as long as the message identifies who authorised the sending of the message. 

(ACMA, Election and political matter guidelines)

What makes this even more a slap to the face to me is that if I was to stand again as an Independent, I am explicitly prevented from doing this. Even if I was to be elected, I still couldn’t do this.

'Commercial messages from independent members of parliament or candidates for election are not allowed.'

(ACMA, Election and political matter guidelines)

But again, why the heck would I want to? It only seeks to annoy people and I don’t think it would really make people want to vote for you. Not to mention it would be really expensive to do so. Expense not being relevant if you’re wealthy I suppose.

So, long story short, there is nothing illegal about what Clive Palmer or his party is doing. There’s nothing to stop him sending as many messages as he wants, which he says he will continue to do so. The only limit is, of course, time and money. While I don’t endorse Clive or defend or even believe what he is doing is right, I thank him highly for bringing much-needed attention to these special provisions that political parties give themselves. The SPAM Act was passed in 2003. Back then, I do not believe the major parties thought a wealthy individual would ever form their own party and use their own exemptions against them.

Short-sighted as always.

Steven Lopez works in I.T. and has stood as an Independent candidate in State and local elections in NSW. You can follow him @slopezAU.

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