In part one (
here), we touched on figuring out what is and isn't a
'commercial electronic message' under the Spam Act. Now
you've drafted your message, but you're not ready to go yet
– it cannot be sent unless the recipients have provided their
The Spam Act devotes an entire schedule to the definition of
express and inferred 'consent'.
As the name suggests, express consent requires that the
individual has agreed to receiving the message. This can be
achieved through the individual ticking a check box, agreeing
verbally or providing an email address for that purpose. Something
along the lines of "I consent to receiving updates about your
company's products or services" would do nicely.
Note that messages requesting consent can't be sent;
you've either got the consent or not. Also, pre-checked tick
boxes, however clever and sneaky, won't get you the required
Inferred consent is consent that can be reasonably inferred from
the conduct of the recipient or the relationship between the sender
Where the relationship is such that the recipient would have a
reasonable expectation of receiving commercial messages, you've
got inferred consent.
where a recipient subscribes to a particular publication, it
may be reasonable to infer that the recipient would consent to
receiving messages about other services offered by the
consent can be inferred from the conspicuous publication of a
work-related email address because that address is accessible to a
section of the public and is not accompanied by a statement
withholding consent (ie you can trawl websites and send emails to
people stupid enough to publish their email addresses online (like,
um, us)); and
where individuals have volunteered their email addresses to a
marketing database and that database is on-sold to a business, this
may be a basis to infer consent.
But it's not case closed once express or inferred consent is
established. Next time we'll take a look at the content
requirements with which each commercial electronic message must
comply: adequate sender identification and a compliant
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).