Businesses face significant fines where they distribute spam.
Therefore, they must ensure that they have processes in place that
enable compliance with the Spam Act 2003 (Cth) (Act).
Most people can relate to the frustration of receiving
unsolicited mass emails about new products and offers in which you
have no interest. The Act seeks to pBy Michael Park and Sara
Paytonrovide some relief from these messages by prohibiting persons
from sending, or causing to be sent, unsolicited commercial,
electronic messages (CEMs). Only SMS and email messages are caught
by the Act. However, other statutes, such as the Do Not Call
Register Act 2006 (Cth), operate to restrict other forms of
Interestingly, the act of sending CEMs is not of itself
prohibited by the Act. However, the Act mandates that 3
requirements be satisfied each time CEMs are sent: obtain the
consent of the recipient, identify the sender and include a
functional unsubscribe facility.
CEMs may only be sent with the consent of the recipient. Consent
may be express, such as when a customer ticks an opt-in box on a
website. Consent may also be inferred in some cases. Where the
sender has an established relationship with the recipient and the
recipient would reasonably expect to receive the message, consent
will usually be inferred; for example, a hair salon reminding a
customer of an appointment. Consent may also be inferred where a
work related email address is conspicuously published and the
sender sends a CEM that directly relates to that person's line
of work. While you may have the consent of a customer to send a
CEM, the customer can withdraw his or her consent at any time. It
is therefore important for businesses to keep accurate records of
persons who have provided or withdrawn their consent.
Identify the sender
CEMs must include accurate sender information. Therefore, where
you are sending CEMs, you must ensure that the message identifies
you, or your organisation, as the sender of the message and details
how the recipient can contact you.
Recipients of CEMs must have the opportunity to opt-out. Any CEM
that you send must contain a functional unsubscribe facility which
must remain functional for at least 30 days after the CEM is sent.
The Act provides some relief from this requirement where the
message contains only factual information. However, businesses must
exercise some caution in relying on this exclusion as the
distinction between promotional and factual information can often
be quite blurred. For example, although a catalogue contains
factual information about products and prices, this would not fall
within the exception and an opt-out function would need to be
The penalties associated with breaching the Spam Act are
significant. In fact, a breach of the Act can result in fines ofup
to $1.1 million per day. Therefore, businesses must ensure
The eMarketing Code establishes an industry code for sending
electronic messages in accordance with the Act. The Code provides a
useful tool in offering further guidance to businesses in respect
of how they can comply with the Act. Although the provisions of the
Code largely reflect the Act, the Code also deals with spam more
widely, such as 'friend-get-friend' marketing
Recent penalties for breaches of the Act have been very
substantial. For example, fines of $22.25 million were imposed on
several associated defendants for sending unsolicited premium
With such a significant risk to businesses, it is vital that any
commercial email or SMS you intend to send complies with the Act.
If in doubt, seek legal advice in respect of your proposed
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).