Networking can be a great way to drum up business and sending emails is a common way to keep customers engaged. So, what if you want to send marketing emails to people you have met at a meeting? You have their business card, so you have their email address. But will you breach the Spam Act 2003 (Cth) (the Act) by sending emails to people you have met at meetings and who have given you their business card? We step you through the Act as well as best practice tips when sending emails to networking contacts.

What is Spamming?

After recovering from the dot-com bust, online marketers began experimenting with email marketing to promote their business. People like Wayne Mansfield were sending millions of unsolicited emails to individuals and businesses using harvested address lists. The Act was passed into legislation in 2003, to protect consumers from this kind of behaviour and prohibits sending unsolicited commercial electronic messages.

Commercial electronic messages must have clear information about the sender of the email and an easy to find ‘unsubscribe’ function. Section 6 defines an electronic message which, by looking at the content of the message and the way it is presented, is used to offer supply goods or services or is for another business purpose. Here, an email is an ‘electronic message’.

Can I Send Emails to People I Have Met at Business Meetings?

Section 16(2) of the Act says that a person must not send a commercial electronic message unless the person has the consent of the recipient of the email.

Consent

The question is whether a person providing their business card is consent to receiving commercial electronic messages. Under Schedule 1 of the Act, consent is either express or reasonably inferred from the conduct and business relationship of the individual or organisation concerned.

Australian Communications and Media Authority v Clarity1 Pty Ltd (ABN 60 106 529 604) and Another (2006) 229 ALR 658

In this case, Wayne Mansfield was the sole director of Clarity1 Pty Ltd (the Business). Mansfield sent more than 213 million emails he had gathered using address harvesting software and other means. Mansfield argued that the failure of people to opt out of receiving the emails by unsubscribing meant that people had consented to receiving the emails. The Court said that the obligation under the Act to include an unsubscribe function didn’t mean that consent could be inferred if people didn’t unsubscribe.

Mansfield also argued that he was in a business relationship with the recipients of his emails, as the Act states that consent can be inferred from the conduct and business relationship of the individual or organisation concerned. The Court rejected this argument, as there was ‘no relationship, only unilateral communication’. However, the Court said that in the case of customers who had purchased goods and services from the Business, an inference could be drawn.

What Does This Mean For Me?

The case shows the importance of having a business relationship with the person or organisation which will receive emails, to determine whether consent can be inferred. The question of whether sending emails using business card details breaches the Act hasn’t been tested, but it is arguable that you have a business relationship with a person you have met at a business networking event. If you have a business relationship with a person or organisation, then it is arguable that their consent to receiving emails can be inferred.

Key Takeaways

  • Don’t send emails to people with who you don’t have a business relationship. Wayne Mansfield sent millions of emails to people he had never met before, and the communication was all one way – no business relationship existed.
  • When sending emails, include an unsubscribe function and clearly identify that you are sending the message.
  • If you’re sending emails to a person you have met at a business meeting, that person is unlikely to have seen your privacy policy. When you send an email, include a link to your privacy policy at the bottom of your email, so the person can understand how you collect, store and use personal information. Get a privacy policy drafted if you do not have one.

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Meeting people at networking events can be a good way to find potential customers. Sending emails helps keep people engaged, but ensure you understand your obligations under the Act. You need to have a person’s consent, include an unsubscribe function and make it clear that you are the sender. The Clarity1 case shows the importance of having a business relationship to infer that a recipient consented to receiving an email. Don’t send unsolicited emails where you have no business relationship.

Importantly, if you are unsure about whether your marketing emails comply with the Spam Act – ask! You can get in touch with our IT lawyers on 1300 544 755. 

Chloe Sevil

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