Sodium-rich mystery meat? Or commercial electronic
message? Figuring out what is and isn't regulated by the Spam
Act can be tricky, and getting it wrong can cost your business big
dollars. The Spam Act regulates the sending of 'commercial
electronic messages' and the first of our three part series on
compliance with the Spam Act looks at that definition.
A commercial electronic message is a message sent by email, SMS,
MMS or instant message that:
offers, promotes or advertises goods, services, land or
business or investment opportunities;
advertises or promotes a supplier of goods, services, land or
business or investment opportunities; or
assists a person to dishonestly obtain property, commercial
advantage or other gain from another person.
It's a pretty broad definition and one that businesses
should be thinking about as the Australian Communications and Media
Authority has the power to impose fines of up to $1.7million. In
determining whether a message is commercial, ACMA will look at the
content of the message, how it is presented, and any links or
contact info which may include commercial content.
Case study – In 2013, GraysOnline sent a non-compliant
(see part 3) email to its customers introducing its new website
'GraysEscape'. Interestingly, Grays made the decision that
the message was not promotional (what?) and therefore didn't
need to comply with the Act. They got that decision wrong and
copped a $165,000 fine for breaching the Spam Act. Delicious Spam?
Messages with an 'Australian link' are caught, which
includes those that originate in Australia, sent by a business with
operations in Australia, or are accessed by a device physically in
The Spam Act prohibits the sending of 'unsolicited
commercial electronic messages', so tune in for part 2 to get
the rundown on ensuring you have correct consent to send the
message. Later, we'll look at the requirements of the
unsubscribe function required under the Act.
And yes, this is an electronic commercial message, but not
We do not disclaim anything about this article. We're
quite proud of it really.
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).