Readers would be familiar with the contents of the SPAM Act.
Essentially, the Act requires that an electronic communication must
not be sent without the consent of the recipient, it must contain
clear and accurate information about the person or organisation
that authorised the sending of the message, and it must contain an
"opt out" or "unsubscribe" provision so the
recipient can choose not to receive emails in the future.
In recent times there have been two quite significant penalties
imposed for organisations that are failed to take the appropriate
steps to ensure that they complied with the Act.
A: Sending emails on behalf of others.
In May this year, J and L Mainwaring Pty Ltd paid $21,600
following the issue of an infringement notice from the Australian
Communications and Media Authority (ACMA). The
ACMA found that the company had sent marketing emails on behalf of
other businesses, but was not able to show that the recipients had
consented to receive those messages.
The messages also breached the Act in that they did not have the
name or contact details of the business that authorised the sending
of the message.
The fine applied notwithstanding that the party who was
ultimately to benefit from the issue of the direct marketing
material, was not the party fined.
This penalty is clear evidence that you need to do more than
just assume that a person who provides you with a database of
information has done so with the consent of the persons in that
database. Once you are sure that consent has been received you
still need to comply with the other requirements of the legislation
so as not to be the subject of an Acma prosecution
B: Assuming the Act doesn't apply
In April 2015, Grey's online shopping websites had made a
conscious decision to issue an email based on their belief that the
email was not "promotional". The ACMA found that the
emails were emails to which the Act applied. That being the case
the messages required the mandatory opt out facility. That was not
included. It was further found that people who had previously
withdrawn their consent had been issued with the email. Such
conduct was found to be a material breach of the legislation. This
resulted in a much higher fine than J and L Mainwaring Pty Ltd had
Again the lesson is to ensure that you make an accurate
assessment as to whether or not an email will be the subject of the
SPAM Act. If in doubt seek our professional assistance in making
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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