In Australia, the Spam Act 2003 ('Spam Act') contains requirements in relation to the sending of commercial electronic messages ('CEMs') which include, but are not limited to, SMS and email messages. Section 16 of the Spam Act expressly prohibits the sending of unsolicited CEMs that have an Australian link1 and are not classified as a designated commercial electronic message ('DCEM').2
The Australian Communications and Media Authority ('ACMA') investigates and enforces compliance with the Spam Act and the recent investigation of Tabcorp Holdings Limited ('Tabcorp') highlights the importance for businesses of ensuring compliance with this legislation.
In April 2025, the ACMA found that Tabcorp, a large gambling and entertainment services provider, had breached the Spam Act by sending thousands of unlawful marketing messages to customers of its VIP program between 1 February and 1 May 2024. The ACMA issued a penalty of $4,003,270 against Tabcorp3—one of the highest penalties of its kind imposed by the regulator.
The case highlighted three key requirements under the Spam Act as follows:
- Consent (s 16(1)): that is, that an exception to the prohibition on the sending of CEMs under the Spam Act is the express or inferred consent of the electronic account-holder.
- Identification (s 17(1)): The CEM must clearly and accurately identify the individual or organisation that authorised the sending of the message, and include accurate information about how the recipient can contact such individual or organisation.
- Unsubscribe link (s 18(1)): The CEM must contain a functional unsubscribe facility in accordance with the requirements set out in the Spam Act and the Spam Regulations 2021.4
ACMA's investigation report5 outlined Tabcorp's conduct during the relevant period which gave rise to the contraventions as follows:
- 11 CEMs sent via SMS were sent in contravention of s 16(1) after the relevant electronic account holders had made a request to unsubscribe and had therefore withdrawn their consent;
- 3,148 CEMs sent via SMS or WhatsApp did not contain accurate information about the identity of the sender and their contact details, in contravention of s 17(1); and
- 2,598 CEMs sent via SMS or WhatsApp were sent without providing a functional unsubscribe facility, in contravention of s 18(1).
Tabcorp also entered into a three-year, court-enforceable undertaking, which included appointing an independent consultant to review its policies, procedures and systems applicable to its compliance with the Spam Act including its direct marketing systems, implementing improvements, conducting quarterly quality assurance audits of its VIP program messages, providing staff training, and reporting to ACMA. 6
This is a timely reminder to ensure that your business reviews its marketing procedures and complies with the Spam Act.
If you have any queries in relation to the above, please do not hesitate to contact Felicity Cara-Carson of our office.
Footnotes:
1 'Australian link' is defined in s 7
of the Spam Act 2003.
2 Spam Act 2003 (Cth) s 16. As defined in
Schedule 1 of the Act, DCEMs are messages consisting of no more
than factual information and which contain additional information
identifying the sender (such as name, logo and contact details), as
well as a message, the sending of which is authorised by (and
relating to goods or services supplied or to be supplied by) a
government body, registered political party, registered charity,
and in the case of educational institutions, such message is sent
to present or former students.
3 Australian Communications and Media Authority,
Infringement Notice – Tabcorp Holdings Limited
(4 April 2025)
4 See regulation 7 of the Spam Regulations
2021.
5 Australian Communications and Media Authority,
Investigation Report – Tabcorp Holdings Limited
(Final Report, 4 April 2025)
6 Australian Communications and Media Authority,
Enforceable Undertaking – Tabcorp Holdings
Limited (Executed 26 May 2025)
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.
