Maccas given formal warning for breach of Spam
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
Case Study – McDonald's Happy Meal
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
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
You must always remember the three 'golden rules' of the
Spam Act. Don't send a commercial electronic message
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.
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Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with, the Spam Act 2003.
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