In September 2012, the Australian Communications and Media Authority (ACMA) issued
formal warnings to two Australian businesses for their failure to comply with the Spam Act
2003 (Cth) (the Act). This serves as a timely reminder to Direct Selling Organisations
(DSOs) to ensure that the electronic messages they (and their salesforces) send comply
with the Act.
In issuing formal warnings under section 41 of the Act, ACMA concluded that both
businesses, Aussie Web Tech Pty Ltd and My CRA Pty Ltd, had sent marketing messages
to consumers which did not include details as to how recipients of the messages could
The Act prohibits the sending of unsolicited, electronic messages which are commercial in
nature. Modes of communication covered by the Act include email, instant messaging, SMS
and MMS. The sending of faxes and voice telemarketing are not regulated by the Act.
Commercial messages are any that offer, promote or advertise businesses and/or the
supply of products, services or business opportunities. Furthermore, messages which
contain, for example, links to commercial content will also be considered commercial in
Companies who are repeat offenders in breaching the Act may be subject to penalties of up
to $1.1 million per day.
What do I need to do to comply?
DSOs and members of their salesforces who conduct electronic marketing activities must
ensure they comply with the three principal requirements of the Act, namely:
Consent: The recipient must have consented to the message being sent. This consent
may be express or inferred. (This would be the case if the sender already has a
business or personal relationship with the recipient, for example, by being a member of
the sender’s downline.)
Contact Information: The sender of the message must ensure their contact information
is contained in the message.
Unsubscribe Facility: The message must contain an unsubscribe facility which the
recipient can use to opt out of receiving future messages.
What is an unsubscribe facility?
To comply with the Act, DSOs and their salesforce must ensure that the unsubscribe facility
they use is:
easy to understand and use;
operational for a minimum of 30 days after the message is sent; and
able to be used by recipients at no cost or minimal cost.
Unsubscribe Facilities: Examples
ACMA notes on its website
that unsubscribe facilities in electronic marketing messages
may include statements such as the following:
“If you no longer want to receive messages from us, simply reply to this email with the
word ‘unsubscribe’ in the subject line (email)”;
“If you no longer want to receive these messages, please click ‘unsubscribe’ (email)”;
“Unsub: reply Stop (SMS)”; and
“To opt-out, call 1800 xxx xxx (SMS)”.
Hopefully, an unsubscribe facility is included consistently in each of the electronic
marketing messages your company sends. However, do your unsubscribe facilities meet
the requirements of the Act? If not, you should ensure that they do prior to sending any
further electronic marketing messages. You may also consider it prudent to remind your
salesforce of their obligations under the Act.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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