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The Spam Act 2003 (Cth) (Spam Act) regulates commercial electronic messages, including sending marketing and advertising material by email and text message. Below, we set out five key points any business should know before clicking the send button.

1. What is the Spam Act?

The Spam Act is an Australia-wide law that prohibits the sending of unsolicited commercial electronic messages (known as spam) that has a link to an Australian entity.

2. What is a Commercial Electronic Message?

The Spam Act defines a commercial electronic message as:

  • Messages that offer, advertise or promote the supply of goods, services, land or business or investment opportunities;
  • Messages that advertise or promote a supplier of goods, services, land or a provider of a business or investment opportunity; or
  • Messages that help a person dishonestly obtain property, commercial advantage or other gain from another person. 

3. When is an Electronic Message Commercial?

The message is ‘commercial’ if it contains any links, phone numbers or contact information that has a commercial purpose or leads to content with a commercial purpose. The Spam Act regulator, the Australian Communications and Media Authority (ACMA), will also consider the the content of the message and the way the message is presented, to consider if it is commercial.

4. Does the Spam Act Only Apply to Messages Sent From Australia?

The Spam Act applies to messages sent from an overseas if the message was sent to an address accessed in Australia. It also applies to messages that originated in Australia or were commissioned in Australia. This means the Spam Act applies to messages sent by an outsourced offshore marketing company, on behalf of Australian businesses, as well as messages sent from offshore businesses to Australian recipients. 

5. Do I Need Consent to Send Commercial Electronic Messages?

You will need the recipient’s express or inferred consent to send a commercial email. You can read about what counts as consent in our article, ‘Can I Send Marketing Emails to Anyone Who Gives Me their Business Card?‘ If you do not have either express consent or inferred consent, then you can be found guilty of breaching the Spam Act, and you can be fined.

What Messages Can You Send Without Consent?

Under the Spam Act, certain types of messages from the following organisations do not require consent:

  • Government bodies,
  • Registered charities,
  • Registered political parties, and
  • Educational institutions (for messages sent to current and former students).

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Does your business send commercial electronic messages? If so, it’s important that you understand and comply with your obligations under the Spam Act to avoid receiving a fine. If you have any questions about the laws which apply to your online business and emails, get in touch with our online law lawyers on 1300 544 755. We can also assist you with compliance such as obtaining the required consent and including the correct unsubscribe information in each commercial email.

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