Email marketing is a great tool to reach out to your clients or new leads. However, businesses that send unsolicited commercial electronic messages risk action for breaching the Spam Act 2003 (Cth) (the Spam Act). This article details the obligations that businesses have as concerns sending commercial electronic messages under the Act.

Spam Act 2003 (Cth)

The Spam Act prohibits businesses from sending unsolicited commercial electronic messages and provides them with rules for sending legitimate ones.

Under the Spam Act, an electronic message includes messages sent using an internet ‘carriage service’. Carriage services have the same meaning as that adopted in the Telecommunications Act 1997 (Cth). The Act typically includes messages sent using applications like:

  • Email;
  • Short message service (SMS);
  • Multimedia message service (MMS); and
  • Instant messaging, such as chat.

The Spam Act covers those messages with a link to Australia. A message has a connection to Australia if it:

  • Originates in Australia and is sent to any destination; or
  • Originates overseas and is sent to an address accessed in Australia.

An electronic message is commercial when it is possible to conclude that its purpose, or one of its purposes, is to offer a commercial or business transaction or direct a person to a location where a commercial transaction can occur. Determining whether a message is commercial is a holistic process. The Act considers:

  • The content of the message; and
  • The way in which the message is presented; and
  • The content locatable using the links, telephone numbers or contact information (if any) provided in the message.

For example, an electronic message is commercial if it offers the supply of goods or services, to provide a business or investment opportunity or advertises or promotes a business or investment opportunity. This list is not exhaustive. The Spam Act sets out a more comprehensive guide to commercial electronic messages.

The Spam Act does not cover all kinds of commercial messages. It imposes no restrictions on other types of commercial messages such as non-electronic messages (for example, leaflets) and voice-to-voice telemarketing. It also does not prevent pop-up windows on a website because these form an intrinsic part of the site itself. Further, the Act does not prohibit messages with any commercial content or which do not include links to a commercial site.

The Spam Act also makes provision for ‘designated’ commercial electronic messages. These can only come from certain kinds of organisations including:

  • Government bodies;
  • Registered Political Parties;
  • Registered Charities; and
  • Educational institutes (when sending messages to current and former students).

These organisations can send unsolicited commercial electronic messages. These messages also do not need to include a functional unsubscribe facility. However, they must include information about the organisation or individual who authorised the sending of the message.

Consent to Receive Email Messages

The Spam Act prohibits the sending of unsolicited commercial electronic messages with a link to Australia. However, it permits these messages provided that a recipient consents to receive them. To that end, the Act provides a framework for sending legitimate commercial electronic messages.

Under the Act, consent is either express or inferred. Inferred consent derives from the conduct and the business and other relationships of the organisation or individual concerned.

All commercial electronic messages sent under the Act must identify clearly and correctly who sent it. That is, the organisation responsible rather than the individual who hit send. Further, the message must provide contact details that will remain valid for at least thirty days afterwards.

Further, these messages must include a functional unsubscribe facility that allows recipients to indicate that they no longer wish to receive the emails. The facility must be accurate and also remain operational for at least thirty days. Once a business receives notification of an individual’s wish to unsubscribe, they have five working days to action the request.

Email Address Harvesting

The Spam Act also strictly prohibits businesses from:

  • Supplying, acquiring or using address harvesting software; and
  • Supplying, acquiring or using an electronic address list produced using that kind of software.
  • The Act prohibits this kind of software and its concomitant lists because they enable a business to send spam on a large scale.

Penalties

The Spam Act prescribes a range of penalties for businesses that breach its provisions. These penalties include:

  • Warnings;
  • Infringement notices;
  • Legal Action; and
  • Pecuniary Penalties.

Privacy Principles

All businesses need to be aware that observing their obligations under the Spam Act does not derogate from their responsibilities under the Privacy Act 1988 (Cth) (the Australian Privacy Principles).

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LegalVision has provided many businesses with advice about their obligations under online and IT law. Call LegalVision today on 1300 544 755 or fill out the form on this page

Carole Hemingway

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