Does your business send SMS messages to clients? Do you know the
laws around sending SMS marketing, and is your business
Many businesses use SMS technology to communicate with their
customers without understanding the compulsory legal requirements
for doing so. The laws around SMS marketing are the same as apply
to email marketing and spam, and apply even if you are simply
sending an SMS reminder for an appointment to your client. The
fines for not complying are real, and potentially crippling to most
businesses (companies breaching the Spam Act 2003 are liable to
penalties up to $1.1 million per day, and up to
$220,000 per day for individuals). That's not to mention the
bad publicity and damage to your business reputation. If you
aren't sure whether your company is compliant, then now is
certainly the time to get informed and check your techniques are
Why now? Recently, the Australian
Communications and Media Authority (ACMA) has engaged in 2
crackdowns on SMS marketing. In recent days, ACMA
fined Optus $220,000 for allegedly sending SMS messages to its
customers without including the required sender identification and
commenced proceedings against 3 companies for sending (or causing
the sending of) unsolicited SMS messages to Australian mobile
telephone numbers. This is the first time ACMA has brought
proceedings for a breach of the SMS provisions of the Spam Act
2003. In previous Federal Court litigation, a company breached the
Spam Act 2003 by sending unsolicited emails and using harvested
address lists. That company was ordered to pay a fine of $4.5
million, and the individual concerned was ordered to personally pay
$1 million. Earlier this month, ACMA accepted
court-enforceable undertakings from EMX Pty Ltd which also
allegedly sent a significant number of SMS messages without clear
and accurate sender identification.
If your business sends SMS messages, make sure you are not on
You can do this by:
ensuring you have the specific consent of the recipient to
receive SMS messages (what do your new customer forms say, and what
records do you keep?);
clear and accurate sender identification (not just the
sender's phone number); and
a functional 'unsubscribe' facility to opt out of
receiving SMS (this must be attached to every SMS message your
company sends, and requests to unsubscribe must occur within the
If you're not sure if you comply, or if it has been a while
since your marketing staff had SMS training, it might be time to
brush up on your legal requirements.
Swaab was recently named a 2009 Winner in the
ALB Employer of Choice awards, and was winner 'Best Law Firm in
Australia (Revenue < $20m)' and 'Attribute Award for
Exceptional Service (Australia Wide)'
in the 2008 BRW- Client Choice Awards.
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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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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