On 13 December 2012, the Australian Communications and Media Authority (ACMA) issued a formal warning to McDonald's Australia in relation to its "Send to Friend" campaign.

What is a "Send to Friend" Campaign?

A "Send to Friend" campaign, or "Refer a Friend" campaign, is a form of viral marketing whereby recipients or participants in a particular campaign are encouraged to attract further support for the campaign by on-sending material about the campaign to their friends, by entering the contact details of their friends so that they too can receive the material, or by otherwise encouraging friends to participate in the campaign or promotion.

Commonly-used "Send to Friend" campaigns include:

  1. providing a facility as part of a promotion for individuals to submit the contact details of their friends, so that those friends may also receive an email about that promotion; and
  2. inviting individuals to forward a message, link or other material to their friends.

In some cases, there may be an incentive for the individual to distribute the information in the way described above – for example, the individual may receive an additional entry into a competition, or another gift.

"Send to Friend" campaigns are often favoured by marketers and businesses as they allow the dissemination of material to a broader audience and, in some cases, will assist the marketer to build its database for use in future campaigns.

What did McDonald's Australia do?

According to the ACMA, between 16 September 2011 and 2 February 2012 McDonald's Australia provided a "Send to Friend" facility on its Happy Meal website which encouraged visitors to email links to certain promotional games on the website to their friends.

When issuing the formal warning under section 41 of the Spam Act 2003 (Cth) (Spam Act), the ACMA found that the McDonald's campaign was in breach of the Spam Act as a result of the following:

  1. McDonald's Australia had sent, or caused to be sent, commercial electronic messages without the consent of the account-holder; and
  2. the messages did not contain a functional unsubscribe facility

The finding of the ACMA is significant in two respects. It represents the first time that the ACMA has taken action against a large business in Australia for a "Send to Friend" campaign on the basis of failure to obtain consent. Importantly, while McDonald's Australia was not directly sending the messages – but was encouraging its website users to send the messages – the ACMA found that McDonald's Australia was liable because it had caused those messages to be sent by providing the facility, in circumstances where the ACMA was not satisfied that the recipients of those messages had consented to receiving the messages.

"Causing" commercial electronic messages to be sent

It is widely known that commercial electronic messages, including emails and SMS, with an Australian link must not be sent without the consent of the intended recipient – however, to date little attention has been given to the prohibition in the Spam Act which deals with causing an unsolicited commercial electronic message to be sent.

This prohibition, which is contained in section 16 of the Spam Act, means that if a person or entity is conducting a campaign that:

  1. encourages individuals to on-forward, send, or otherwise share marketing and other commercial material with their friends; or
  2. provides a facility allowing individuals to send or distribute marketing and other commercial material to their friends,

and that person or entity cannot establish that the end-recipient (being the friend) has consented to receiving that message, then the person or entity conducting a campaign may be in breach of the Spam Act.

What does this mean for "Send to Friend" campaigns?

The finding of the ACMA against McDonald's Australia demonstrates that the ACMA is increasingly prepared to take action in respect of "Send to Friend" campaigns, and any such campaign must be carefully planned to ensure it does not breach the Spam Act.

Key items to bear in mind if contemplating such a campaign include the following:

  • Even if you do not directly send the message – for example, if you instead encourage people to forward a link or if you provide a facility that ensures the individual's name appears as the sender and not yours – this is unlikely to absolve you of responsibility where you still caused the message to be sent.
  • Advising people that they can only on-forward or share the material or promotion with friends who have consented to receiving the message may not be sufficient for you to establish that the friend has provided actual consent.
  • A relationship between two people – whether they are friends or merely contacts – may not mean that the friend would reasonably expect to receive commercial electronic messages about your business.

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.