Maccas given formal warning for breach of Spam Act

We often review campaigns and promotions which incorporate a "send to a friend" mechanic. They are a popular way to increase the reach and impact of a promotion. What many marketers don't realise is that, if not carefully executed, send to a friend mechanics may well breach the Spam Act 2003 (Spam Act) and that substantial civil penalties may apply.

Case Study – McDonald's Happy Meal Website

Between September 2011 and February 2012, McDonald's had a "send to a friend" facility on their Happy Meal Website, which encouraged site visitors to email links to games and activities to their friends. Following an investigation by the Australian Communications and Media Authority (ACMA), on 13 December 2012 a formal warning was issued to McDonald's for breaches of subsections 16(1) and 18(1) of the Spam Act. McDonald's was not directly sending the messages – but the ACMA found that it was liable because it had caused those messages to be sent by providing the "send to a friend" facility, in circumstances where the recipients of the messages had not consented to receiving them. The messages also lacked an opt-out or unsubscribe facility.

A formal warning lets a business know that the ACMA has identified issues of concern, and provides an opportunity to address those issues. Furthermore, it also alerts the business that stronger enforcement action may be taken if non-compliance with the Spam Act is not rectified or it recurs. As a result of the formal warning, McDonald's removed the "send to a friend" facility and has given assurances to the ACMA about its future e-marketing activities.

Implications

You must always remember the three 'golden rules' of the Spam Act. Don't send a commercial electronic message unless:

  • you have the recipient's consent;
  • the sender is clearly identified; and
  • the message includes a functional unsubscribe facility.

If your business is subjected to an ACMA investigation, you may be asked to prove that you have consent for every each and every recipient of your messages. One of the most common complaints received by the ACMA is from people who get a message from a business they have never heard of, which is often the result of a so-called 'friend' passing on their email address.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.