Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 6) [2009] FCA 1533

Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 6) [2009] FCA 1533

Because Jobspy deliberately acted for more than 800 days as the service entity facilitating deceptive unsolicited premium SMS conduct, and because Mr Moles was Jobspy's sole director and shareholder and held senior positions in the corporate respondents while knowing of their operations, substantial penalties were required for specific and general deterrence. Allowing for Jobspy's subordinate service role, totality and parity with penalties already imposed, a $4,000,000 penalty was appropriate for Jobspy. Allowing for Mr Moles' director roles, knowledge and involvement, but also his somewhat lesser active involvement than Messrs Owen and Salcedo, a $2,500,000 penalty was appropriate for him.

Jurisdiction
Australia
Judgment Date
16 December 2009
Procedural Posture
Civil Penalty Proceeding Concerning Contraventions of the Spam Act 2003 (cth) / Penalty Hearing Following Default Judgment Against the Third and Sixth Respondents
Outcome
Civil pecuniary penalties imposed against the Third and Sixth Respondents, with costs and service orders.
Legal Topics
['unsolicited SMS Messages' 'spam' 'fake Dating Profiles' 'misleading or Deceptive Conduct' 'pecuniary Penalties' 'default Judgment']
['communications Law' 'civil Penalties' 'consumer Protection'] ['unsolicited SMS Messages' 'spam' 'fake Dating Profiles' 'misleading or Deceptive Conduct' 'pecuniary Penalties' 'default Judgment']

Case Brief

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Procedural Posture

Civil Penalty Proceeding Concerning Contraventions of the Spam Act 2003 (cth) / Penalty Hearing Following Default Judgment Against the Third and Sixth Respondents

Legal Issues

  1. 1 ['What civil pecuniary penalty should be imposed on Jobspy Pty Ltd for its involvement in contraventions of the Spam Act 2003 (Cth).' 'What civil pecuniary penalty should be imposed on Scott Mark Moles for his involvement in contraventions of the Spam Act 2003 (Cth).' 'How deterrence, totality, parity, capacity to pay, cooperation, corporate culture, and the nature and extent of the contravening conduct should affect penalty.']

Ratio Decidendi

Because Jobspy deliberately acted for more than 800 days as the service entity facilitating deceptive unsolicited premium SMS conduct, and because Mr Moles was Jobspy's sole director and shareholder and held senior positions in the corporate respondents while knowing of their operations, substantial penalties were required for specific and general deterrence. Allowing for Jobspy's subordinate service role, totality and parity with penalties already imposed, a $4,000,000 penalty was appropriate for Jobspy. Allowing for Mr Moles' director roles, knowledge and involvement, but also his somewhat lesser active involvement than Messrs Owen and Salcedo, a $2,500,000 penalty was appropriate for him.

Court Disposition

Civil pecuniary penalties imposed against the Third and Sixth Respondents, with costs and service orders.

Orders

  • ['The Third Respondent, Jobspy Pty Ltd, pay to the Commonwealth of Australia, within 28 days of the date of this order, a civil pecuniary penalty in the amount of $4,000,000 in respect of its involvement in contraventions of the Spam Act 2003 (Cth) as found by the Court on 30 November 2009.' 'The Sixth Respondent,...