Businesses who build their marketing database from or including marketing lists bought from third parties still need to show evidence or supporting records that the people on those lists consented to receive electronic messages from the business buying the list.
Online marketing business Web 1000 has been given a formal warning by the ACMA for 20 contraventions of the Spam Act 2003, in relation to emails sent between 17 December 2014 and 2 May 2015. The investigation was commenced as a result of complaints received by the ACMA from consumers who had received marketing messages. Web 1000 was unable to show that these consumers had consented to receiving these messages.
A key learning is that when buying marketing lists from third parties, or even where building lists from leads received directly, you need to be able to show a trail that equates to that individual consenting to receive commercial messages from your business (not only the business selling the list).
The best way to prove consent is to have individuals expressly provide it, preferably via a 'double opt-in' process, and to keep adequate records of this. Otherwise, you will need to be able to show you can infer the individual's consent from conduct or an existing business relationship. The onus is on the sender to prove that. When purchasing lists from third parties, examine the way in which the seller has obtained consent to receive emails from your business. If that third party did not obtain consent that would reasonably include consent to receive emails from your business, the list may present both a legal and reputational risk.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
