On 13 December 2012, the Australian Communications and Media
Authority (ACMA) issued a formal warning to
McDonald's Australia in relation to its "Send to
What is a "Send to Friend"
A "Send to Friend" campaign, or "Refer a
Friend" campaign, is a form of viral marketing whereby
recipients or participants in a particular campaign are encouraged
to attract further support for the campaign by on-sending material
about the campaign to their friends, by entering the contact
details of their friends so that they too can receive the material,
or by otherwise encouraging friends to participate in the campaign
Commonly-used "Send to Friend" campaigns include:
providing a facility as part of a promotion for individuals to
submit the contact details of their friends, so that those friends
may also receive an email about that promotion; and
inviting individuals to forward a message, link or other
material to their friends.
In some cases, there may be an incentive for the individual to
distribute the information in the way described above – for
example, the individual may receive an additional entry into a
competition, or another gift.
"Send to Friend" campaigns are often favoured by
marketers and businesses as they allow the dissemination of
material to a broader audience and, in some cases, will assist the
marketer to build its database for use in future campaigns.
What did McDonald's Australia
According to the ACMA, between 16 September 2011 and 2 February
2012 McDonald's Australia provided a "Send to Friend"
facility on its Happy Meal website which encouraged visitors to
email links to certain promotional games on the website to their
When issuing the formal warning under section 41 of the Spam
Act 2003 (Cth) (Spam Act), the ACMA found
that the McDonald's campaign was in breach of the Spam Act as a
result of the following:
McDonald's Australia had sent, or caused to be sent,
commercial electronic messages without the consent of the
the messages did not contain a functional unsubscribe
The finding of the ACMA is significant in two respects. It
represents the first time that the ACMA has taken action against a
large business in Australia for a "Send to Friend"
campaign on the basis of failure to obtain consent. Importantly,
while McDonald's Australia was not directly sending the
messages – but was encouraging its website users to send the
messages – the ACMA found that McDonald's Australia was
liable because it had caused those messages to be
sent by providing the facility, in circumstances where the ACMA was
not satisfied that the recipients of those messages had consented
to receiving the messages.
"Causing" commercial electronic messages
to be sent
It is widely known that commercial electronic messages,
including emails and SMS, with an Australian link must not be sent
without the consent of the intended recipient – however, to
date little attention has been given to the prohibition in the Spam
Act which deals with causing an unsolicited
commercial electronic message to be sent.
This prohibition, which is contained in section 16 of the Spam
Act, means that if a person or entity is conducting a campaign
encourages individuals to on-forward, send, or otherwise share
marketing and other commercial material with their friends; or
provides a facility allowing individuals to send or distribute
marketing and other commercial material to their friends,
and that person or entity cannot establish that the
end-recipient (being the friend) has consented to receiving that
message, then the person or entity conducting a campaign may be in
breach of the Spam Act.
What does this mean for "Send to Friend"
The finding of the ACMA against McDonald's Australia
demonstrates that the ACMA is increasingly prepared to take action
in respect of "Send to Friend" campaigns, and any such
campaign must be carefully planned to ensure it does not breach the
Key items to bear in mind if contemplating such a campaign
include the following:
Even if you do not directly send the message – for
example, if you instead encourage people to forward a link or if
you provide a facility that ensures the individual's name
appears as the sender and not yours – this is unlikely to
absolve you of responsibility where you still caused the message to
Advising people that they can only on-forward or share the
material or promotion with friends who have consented to receiving
the message may not be sufficient for you to establish that the
friend has provided actual consent.
A relationship between two people – whether they are
friends or merely contacts – may not mean that the friend
would reasonably expect to receive commercial electronic messages
about your business.
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.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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