In the current digital and costs conscious era, many businesses rely on email or SMS to offer or promote goods or services to existing and potential customers. Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with the requirements under the Spam Act 2003 (Cth) ('the Act') prior to sending commercial electronic messages to existing and potential customers.
'Commercial Electronic Messages'
The Act regulates the way that Australian businesses are able to send commercial electronic messages. The term 'electronic messages' for the purposes of the Act includes emails, SMS, instant messaging and other mobile phone messaging (such as MMS), but does not include messages sent by way of a 'voice call' made using a standard telephone service.
The Act only applies to the sending of electronic messages that are commercial in nature. The term 'commercial' for the purposes of the Act refers to where the purpose, or one more of the purposes, of the electronic message is to offer, advertise or promote goods or services, land or business or investment opportunities, or to advertise or promote a supplier or prospective supplier of goods or services.1
Exemption for 'Designated Commercial Electronic Messages'
The Act does not apply to messages that are determined to be a 'designated commercial electronic message'.2 In relation to commercial organisations, designated commercial electronic messages include messages that consist of no more than factual information, (with or without directly related comment) and any or all of the following additional information:
- the name, logo or contact details of the organisation;
- the name of the author and their contact details;
- if the message is sponsored, the name and contact details of the sponsor; and
- contact information about the organisation.
Examples of such messages include newsletters or other similar messages regarding industry news or market developments provided by businesses. Whilst such electronic messages are able to be sent, care should be taken to ensure that such messages dot not contain any direct or indirect form of commercial solicitation.
The general position under the Act is that a commercial electronic message containing an 'Australian link',3 is prohibited from being sent, if it:
- is sent without the prior consent of the recipient:
- fails to identify or include accurate information about the sender; and
- does not include a functional way to unsubscribe to future messages.
The Act does not distinguish between electronic messages that are sent in bulk or sent individually. In this regard, the prohibition applies to the sending of single electronic messages as much as to the sending of electronic messages in bulk.
The consent required to send commercial electronic messages under the Act may be express or inferred consent.
Whilst 'express consent' is not definite in the Act, the term is effectively understood to be an individual taking active steps to specify their consent, such as:
- subscribing to a mailing list (where possible, using a double opt-in process, whereby the recipient
- confirms subscription to a mailing list by reply email or SMS);
- ticking a consent box to receive marketing communication (pre-ticked boxes are not valid consent); or
- providing consent over the phone.
In the absence of express consent, consent may be inferred where it is clear that there is a reasonable expectation by the recipient to receive an electronic commercial message from the sender.
A sender may reasonably infer that a recipient has consented to receiving a electronic commercial message after carefully considering the nature of the electronic commercial message, its relevance to the recipient, and its relationship with recipient.
Examples of where consent may be inferred under the Act include:
- via an existing business (or other commercial relationship), and where there is reasonable expectation by the recipient of receiving commercial electronic messages.
- via the "conspicuous publication" rule - whereby a recipient has published their email address on a publicly accessible website (without a statement saying no commercial messages are wanted). In such circumstances a sender may infer consent to send a commercial electronic message only where such message is relevant and relates to the recipient's business or published employment function or role.
Contraventions of the Act carry with them tough enforcement measures and significant civil penalties. The maximum penalty able to be levied by the Federal Court on an initial offender is $68,000 per offence for an individual, and $340,000 per day for a body corporate. For repeat offenders, the maximum penalty increases to $340,000 per day for an individual and $1.7 million per day for a body corporate.
Whilst the Federal Court is able to deal with a contravention under the Act, The Australian Communications and Media Authority (ACMA) oversees the enforcement of the Act and may issue formal warnings and infringement notices for contraventions of the Spam Act.
Steps for Complying with the Spam Act
If your business plans to send commercial electronic messages for marketing purposes, the following steps should be considered to meet the requirements of the Act:
- identify whether you have the express or inferred consent of a recipient to send a commercial electronic message;
- ensure all commercial electronic messages sent includes clear and accurate identification information about the sender and how they can be contacted; and
- ensure all commercial electronic messages include a functional way for the recipient to unsubscribe or opt-out of from any future messages.
1For more information on what is a 'commercial electronic message', see ACMA Fact Sheet < HTTP://WWW.ACMA.GOV.AU/INDUSTRY/MARKETERS/ANTI-SPAM/ENSURING-YOU-DONT-SPAM/KEY-ELEMENTS-OF-THE-SPAM-ACT-ENSURING-YOU-DONT-SPAM-I-ACMA >
2For more information on ' see designated commercial electronic message' Schedule 1 of the Spam Act.
3'Australian Link' includes if the message originates in Australia, or if the individual or organisation is located in Australia, or the recipient is located in Australia. For more information on 'Australian link' see section 7 of the Spam Act.
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.