Does your business send SMS messages to clients? Do you know the laws around sending SMS marketing, and is your business compliant?
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 legally sound.
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
ACMA's list.
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 prescribed timeframe).
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.