Marketers and business owners often face the mounting pressure of meeting monthly revenue targets. What can you do when you’ve already exhausted all your lead generation ideas for the month? Do you attempt to send another batch of emails and hope for the best? Email marketing can be an excellent way to provide your customers with useful and engaging information. But when does email marketing cross the line and become spam? What are the consequences? This article explains the basics of email marketing laws.

1. What is Email Marketing?

Email marketing is a commonly used lead generation strategy whereby a business will send a batch of emails to a targeted group of people. The people targeted can be from an existing database of clients or a list that the business has purchased. Although email marketing can have many purposes, the end goal is usually to increase brand awareness and promote the business’ products or services.

2. What Email Marketing Laws are there in Australia?

The Spam Act 2003 (Cth) (‘the Spam Act’) governs email marketing in Australia, and the Australian Communications and Media Authority (ACMA) enforces these email marketing laws.

In addition to emails, the Spam Act also covers SMS, MMS and instant messages where the law determines them to be commercial electronic messages. Commercial electronic messages are those that promote, offer or advertise the supply or suppliers of goods and services.

The Spam Act imposes three main rules on email marketers. These rules concern:

  • Consent;
  • Identification; and
  • Unsubscribe options.

Consent

Recipients must first have consented to receive commercial electronic messages before a business can send them any email material. Consent can either be express or inferred. Express consent is where the recipient has deliberately opted-in to receiving emails from the business. For example, this might be when:

  • The recipient contacts the business directly asking to be included on the mailing list; or
  • The recipient enters their email address in a contact form and subsequently ticks a ‘subscribe to newsletter’ box upon submitting.

The Spam Act looks at the conduct or relationship between the mailer and the recipient to determine whether the recipient has given their inferred consent. There needs to be a reasonable expectation that the recipient will receive further emails. For example, if the customer has signed up to a newsletter, the Spam Act can infer that the customer would be interested in receiving promotional material about new products and services.

Furthermore, it is always best practice when collecting personal details to provide a link to your privacy policy. A privacy policy will inform the user what you intend to do with their information.

Identity

The Spam Act makes it clear that the recipient needs to be able to contact the business or person sending the email. Therefore, you should never attempt to conceal your email or website address in your communication.

Unsubscribe Option

Marketers and businesses must provide the recipient of commercial electronic messages the option of unsubscribing to emails. You must also present the unsubscribe instructions in a clear manner. If you do receive a request to unsubscribe, you will have to honour that request within five business days.

You might consider adding an unsubscribe link at the bottom of your email. Alternatively, you can get the recipient to reply back to saying that they wish to unsubscribe. Whatever the method, you need to allow the recipient the option to withdraw their consent if they do not want to receive any more communication from your business.

3. What Messages are Exempt from Email Marketing Laws?

There are two categories of emails which are partially exempt from the above email marketing laws. However, both these categories of emails must still comply with the identity rule.

Purely Factual Emails

Purely factual emails are partially exempt, for example:

  • Emails which provide a price or quote to a customer;
  • Emails which provide a product description to a customer;
  • Emails which advise the recipient and are not commercial; and
  • Emails for the recipient’s genuine safety.

It is important to note that because you have sent a factual email to the recipient, does not mean that they have given you inferred consent to send them further emails that are of a commercial nature.

Emails From Permitted Bodies

The Spam Act also permits emails from certain bodies, including:

  • Governments;
  • Political parties;
  • Charities; and
  • Educational institutions

4. What are the Consequences of Breaching Email Marketing Laws?

The ACMA has certain powers to enforce email marketing laws. This power arises where the law classifies the message as spam, and it includes an Australian link (i.e. a link accessed in Australia or originating from Australia).

These powers include:

  • Issuing formal warnings;
  • Accepting undertakings from the sender;
  • Issuing fines;
  • Seeking injunctions from the Federal Court; and
  • Taking the party to the Federal Court.

Fines can have a maximum amount of $1,800,000 (if you are a repeat offender and sent two or more messages in a day without consent) – so needless to say – don’t stray outside of what is legally allowed!

Key Takeaways

When you’re below those sales targets, squeezing out those last emails might be a good idea – provided you don’t engage in any ‘spammy’ behaviour. In email marketing, it’s never good practice to send more than one email per day. If you are, make sure you’re complying with all the necessary email marketing laws! Unsure whether you’re complying with the Spam Act? Are you receiving unsolicited emails? Get in touch with our IT lawyers on 1300 544 755.

Stephen Yoon

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