Former Liberal backbencher Craig Kelly recently spammed large numbers of Australian voters by sending bulk text messages to their mobile phone numbers.
The spam texts, one of which promoted Kelly’s anti-vax views, struck many recipients as an invasion of privacy and led to thousands of complaints to the Australian Communications and Media Authority (ACMA).
Kelly said the messages were “100% legal”. he is right.
In fact, Australia’s anti-spam law only applies to “commercial” messaging and specifically exempts political communication (Section 44) – including text messages like Kelly’s.
Read more: The Therapeutic Goods Administration has the power to stop deceptive advertising. So why can’t it stop Craig Kelly’s texts?
Some have proposed changes that would allow people to unsubscribe from unwanted political text messages.
But it is likely that in the future we will see more, not less, unwanted text messages – and not just in politics.
How did they get my number?
Kelly, who attended Clive Palmer’s United Australia party earlier this year, has said he used software to generate random mobile numbers.
It’s commendable: there are plenty of sites out there that will do this relatively simple task.
But it’s not cheap to upload random numbers to a server that can send text messages. It is also not efficient, because many randomly generated numbers will not be real numbers.
Again, Palmer’s track record of grand electoral spending in the 2019 federal election suggests he can afford such an approach.
Kelly did not reveal the actual number of text messages she sent, although it is likely in the thousands.
Read more: How political parties legally harvest your data and use it to bombard you with election spam
There are many other ways in which your mobile phone number can become a bait for marketing campaigns.
Think how often you provide your personal contact details for retail and financial transactions, social media accounts, ID checks, entertainment subscriptions.
The reality is that your personal details have commercial value. In the hazy world of data harvesting, they can be transferred and bundled into large data bases and rented out to telemarketers – or they can be leaked or hacked.
These may include your mobile phone number.
How is this legal?
Overall Australian phone numbers, which include both landline and mobile services, are well protected. Access to the Integrated Public Number Database (IPND) managed by Telstra is overseen by the Australian Communications and Media Authority.
Phone subscribers can choose a “silent” (unlisted) number, and opt out of telemarketing calls through the Do Not Call register.
But there is also a political leeway here. Researchers may be allowed to call numbers from the IPND to conduct interview-based research, including market research into “election matters of federal state and local government.”
ACMA can penalize companies that misuse the numbers for “spam” marketing purposes.
But both Telstra and ACMA are clear that they cannot stop political parties as well as charities and some government agencies from sending unwanted marketing numbers.
What about voter list?
When you enroll to vote, you provide your full name, date of birth, current residential address, phone number or numbers, email address and citizenship. You also need proof of identity such as a driving license or passport.
these are the details well protected and support Australia’s compulsory voting system. Still, however, under the Electoral Act, your name and address may be provided to Members of Parliament, registered political parties and candidates for the House of Representatives.
For both major parties, the ALP and the Liberals, that information forms the basis of large data bases gathered for targeted propaganda: making phone calls, knocking on doors, sending automated “robocalls” and texting.
Why exemption to political parties?
When Kelly joined Palmer’s party, he not only gained access to Palmer’s campaign battle chest. Registered political parties enjoy special treatment under Australian electoral law – including the entitlement of public funds for the costs of their campaigns, and exemption from privacy rules governing access to personal data.
The rationale for the exemption is that no regulator should obstruct the free flow of information about electoral choices.
The argument is that the claims and counterclaims of various politicians and parties – even false claims about vaccination – constitute the lifeblood of democracy and should, ultimately, be resolved at the ballot box, not the courts.
All this is based on the High Court’s finding that the Constitution “implied” freedom of political communication to the extent necessary to allow the operation of democratic government.
Read more: 83% of Australians want stricter privacy laws. Now you have a chance to tell the government what you want
For all these reasons, political advertising is largely unregulated in Australia. It doesn’t have to be true or factual. Courts and regulators will be reluctant in the midst of an election campaign to decide on the truth; Voters are expected to show prudence in carrying it out at the ballot box.
Of course, political parties are not the only beneficiaries of this lack of regulation; He is its author in the real sense. The ability of rival parties to cooperate in shaping their own favorable laws is a key pillar of the parties’ cartel theory.
The main, virtually the only, regulatory requirement for political ads is that they are “authorised”—that is, they include the name of the person responsible for them. Authority provides accountability for political statements.
Back in 2016, however, SMS messages were not covered by this requirement. At the end of the 2016 federal election campaign, the Queensland Labor Party sent out a bulk text message to fuel its scare campaign about Liberal plans to “privatize Medicare”.
The text messages were not authorized and, moreover, were asked to come from “Medicare”.
the law was tightened in 2019. Kelly’s text messages were authored by herself.
Is this likely to happen more often in the future?
During the Black Summer bushfires, a fire broke out in Cobargo, on the far south coast of New South Wales. As part of the country’s emergency alert system, thousands of landlines and mobile phones – my own included – were alerted with an immediate warning to evacuate.
Alerts were sent to mobiles according to their registered service address and “handset’s last known location at the time of emergency”.
This is a far cry from Kelly, and no one envisages political parties to be able to target voters by such electronic geo-location.
But it does suggest that ignoring the potential to send short, urgent and unsolicited text messages to large numbers of people is too valuable.
Read more: Three reasons why we should have received Labor’s ‘Medicare SMS’