Why are political parties allowed to send spam texts? And how can we make them stop?
- Written by The Conversation
Another election, another wave of unsolicited political texts. Over this campaign, our digital mailboxes have been stuffed with a slew of political appeals and promises, many from the new party Trumpet of Patriots (backed by Clive Palmer, a veteran of the mass text campaign).
The practice isn’t new, and it’s totally legal under current laws. It’s also non-partisan. Campaigns of all stripes have partaken. Behold, the Liberal Party’s last-minute SMS to voters about asylum seekers before the 2022 federal election, or Labor’s controversial “Mediscare” text before the 2016 poll. Despite multiple cycles of criticism, these tactics remain a persistent feature of Australian election campaigns.
A recent proposal to update decades-old rules could help change things – if a government would put it into practice.
What does the law say about political spam?
Several laws regulate spam and data collection in Australia.
First, there is the Spam Act. This legislation requires that organisations obtain our consent before sending us marketing emails, SMSs and instant messages. The unsubscribe links you see at the bottom of spam emails? Those are mandated by the Spam Act.
Second, the Do Not Call Register (DNCR) Act. This Act establishes a “do not call” register, managed by the Australian Communications and Media Authority (ACMA), which individuals can join to opt out of telemarketing calls.
Finally, there is the Privacy Act, which governs how organisations collect, use and disclose our personal information. Among other things, the Privacy Act requires that organisations tell us when and why they are collecting our personal information, and the purposes for which they intend to use it. It restricts organisations from re-purposing personal information collected for a particular purpose, unless an exception applies.
This trio of laws was designed to offer relief from unsolicited, unwanted direct marketing. It does not, however, stop the deluge of political spam at election time due to broad political exemptions sewn into the legislation decades ago.
The Spam Act and DNCR Act apply to marketing for goods and services but not election policies and promises, while the Privacy Act contains a carve-out for political parties, representatives and their contractors.
The upshot is that their campaigns are free to spam and target voters at will. Their only obligation is to disclose who authorised the message.
How do political campaigns get our information?
Secrecy about the nature and extent of campaign data operations, enabled by the exemptions, makes it difficult to pinpoint precisely where a campaign might have obtained your data from.
There are, however, a number of ways political campaigns can acquire our information.
One source is the electoral roll (though not for phone numbers, as the Australian Electoral Commission often points out). Incumbent candidates might build on this with information they obtain through contact with constituents which, thanks to the exemptions, they’re allowed to re-purpose for campaigning at election time.
Another source is data brokers – firms which harvest, analyse and sell large quantities of data and profiles.
We know the major parties have long maintained voter databases to support their targeting efforts, which have become increasingly sophisticated over the years.
Other outfits might take more haphazard approaches – former MP Craig Kelly, for example, claimed to use software to randomly generate numbers for his texting campaign in 2021.
What can be done?
Unwanted campaign texts are not only irritating to some. They can be misleading.
This year, there have been reports of “push polling” texts (pseudo surveys meant to persuade rather than gauge voter options) in the marginal seat of Kooyong. The AEC has warned about misleading postal vote applications being issued by parties via SMS.
Generative AI is hastening the ability to produce misleading content, cheaply and at scale, which can be quickly pushed out across an array of online social and instant messaging services.
In short, annoying texts are just one visible symptom of a wider vulnerability created by the political exemptions.
The basic argument for the political exemptions is to facilitate freedom of political communication, which is protected by the Constitution. As the High Court has said, that freedom is necessary to support informed electoral choice. It does not, however, guarantee speakers a captive audience.
In 2022, the Attorney-General’s Department proposed narrowing the political exemptions, as part of a suite of updates to the Privacy Act. Per the proposal, parties and representatives would need to be more transparent about their data operations, provide voters with an option to unsubscribe from targeted ads, refrain from targeting voters based on “sensitive information”, and handle data in a “fair and reasonable” manner.
The changes would be an overdue but welcome step, recognising the essential role of voter privacy in a functioning democratic system.
Unfortunately, the government has not committed to taking up the proposal.
A bipartisan lack of support is likely the biggest obstacle, even as the gap created by the political exemptions widens, and its rationale becomes flimsier, with each election cycle.
