Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225

Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225

Significant pecuniary penalties are warranted where systematic, deliberate, and covert conduct exploits emotionally vulnerable victims for profit in contravention of the Spam Act 2003 (Cth); penalties must satisfy general and specific deterrence, taking into account the gravity, scale, deliberate nature, extent of profit and harm, absence of mitigating factors, and relevant statutory considerations.

Parties
Applicant: Australian Communications and Media Authority; First Respondent: Mobilegate Ltd A Company Incorporated in Hong Kong; Second Respondent: Winning Bid Pty Ltd ACN 121 026 793; Third Respondent: Jobspy Pty Ltd ACN 112 801 073; Fourth Respondent: Simon Anthony Owen; Fifth Respondent: Tarek Andreas Salcedo; Sixth Respondent: Scott Mark Moles; Seventh Respondent: Glenn Christopher Maughan; Eighth Respondent: Scott Gregory Phillips
Jurisdiction
Australia
Judgment Date
23 October 2009
Procedural Posture
Civil Penalty Proceedings / Penalty Determination and Final Orders
Outcome
Civil pecuniary penalties imposed; costs awarded to applicant.
Legal Topics
Spam/unsolicited Electronic Messaging, Pecuniary Penalties, Deterrence, Aggravating and Mitigating Factors, False and Misleading Conduct, Australian Link in Electronic Commerce
Communications Law Administrative Law Spam/unsolicited Electronic Messaging Pecuniary Penalties Deterrence Aggravating and Mitigating Factors False and Misleading Conduct Australian Link in Electronic Commerce

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Parties

Australian Communications and Media Authority

Applicant

Mobilegate Ltd A Company Incorporated in Hong Kong

First Respondent

Winning Bid Pty Ltd ACN 121 026 793

Second Respondent

Jobspy Pty Ltd ACN 112 801 073

Third Respondent

Simon Anthony Owen

Fourth Respondent

Tarek Andreas Salcedo

Fifth Respondent

Scott Mark Moles

Sixth Respondent

Glenn Christopher Maughan

Seventh Respondent

Scott Gregory Phillips

Eighth Respondent

Procedural Posture

Civil Penalty Proceedings / Penalty Determination and Final Orders

Legal Issues

  1. 1 Appropriate pecuniary penalty for contraventions of the Spam Act 2003 (Cth)
  2. 2 Application of deterrence, totality and parity principles in penalty assessment
  3. 3 Aggravating factors in systematic, deliberate, and covert corporate wrongdoing

Ratio Decidendi

Significant pecuniary penalties are warranted where systematic, deliberate, and covert conduct exploits emotionally vulnerable victims for profit in contravention of the Spam Act 2003 (Cth); penalties must satisfy general and specific deterrence, taking into account the gravity, scale, deliberate nature, extent of profit and harm, absence of mitigating factors, and relevant statutory considerations.

Court Disposition

Civil pecuniary penalties imposed; costs awarded to applicant.

Orders

  • Mobilegate Ltd to pay $5,000,000 to the Commonwealth of Australia within 28 days.
  • Winning Bid Pty Ltd to pay $3,500,000 to the Commonwealth of Australia within 28 days.