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The term ‘spam’ is commonly used to refer to promotional emails or emails you do not wish to receive. However, spam also has a legal meaning. If your business engages in email marketing, you must understand what Australian spam law prohibits you from doing and what it requires you to do. A key condition for complying with the spam law requirements is to include an opt-out in the message. This article will explore the opt-out requirements and the consequences of failing to respect and take action with an opt-out request.
What is Spam?
The key Australian law on spam is called the Spam Act 2003 (Cth). Regardless of the size of your business, you must comply with the Spam Act. Unless you meet certain exemptions, the Spam Act prohibits you from sending electronic messages where:
- there is an Australian link; and
- a purpose of the message is commercial in nature.
What is an Australian Link?
An electronic message has an Australian link if:
- the message was sent from Australia; or
- the sender or person who authorised the message is controlled by an entity within Australia; or
- the message was accessed in Australia..
What is an Electronic Message?
The Spam Act exclusively applies to electronic messages, including emails, text messages and Whatsapp messages. It does not govern letters you send via post.
What is a Commercial Message?
A commercial message is a message where the purpose or one of the purposes of the message is to:
- offer to supply goods or services;
- advertise or promote goods or services; or
- advertise or promote a supplier of goods or services.
This can be determined by the content of the message, how the message is presented and any content accessible via links in the message.
For example, you may send an email to a customer with an invoice for payment. This is factual content and will be exempt from the Spam Act. However, if you include in the invoice email a link to view your latest sale offerings, the message is likely to be commercial because you are promoting your goods or services.
What Requirements Must You Meet to Send Commercial Electronic Messages?
You can only send a commercial electronic message if you meet the following three requirements.
1. Consent
The recipient must consent to your business sending the commercial electronic message. Consent can be express or inferred from conduct, business or other relationships with the recipient.
2. Sender Identification
You must identify your business as the sender of the message and include current information about how the recipient can contact your business.
3. Opt-Out Function
You must include a clear and prominent statement:
- that the recipient can opt-out of receiving commercial electronic messages from your business; and
- how to opt-out.
An opt-out is also often referred to as an unsubscribe facility.
Continue reading this article below the formWhen Must You Include an Opt-Out?
In every commercial electronic message you send, even though you have consent from the recipient to send the message, you must include an opt-out facility.
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What Are the Requirements for an Opt-Out?
The opt-out in your message must be functional for at least 30 days after the message is sent.
You cannot charge a fee to process an opt-out.
If a recipient makes an opt-out request, you must opt the recipient out of commercial electronic messages within five working days of the request being made.
You must make it straightforward for recipients to unsubscribe from the electronic messages. Specifically, recipients should not be required to:
- provide additional personal information;
- use a premium service;
- incur any fee to unsubscribe; or
- log in or create an account to unsubscribe from electronic messages.
What Happens If You Do Not Honour an Opt-Out Request?
Failure to opt a recipient out of commercial electronic messages within five working days of their request means that any future commercial electronic messages you send will be considered spam. This is because by opting out, the recipient has withdrawn their consent. Therefore, you are missing one of the three requirements to legally send a commercial electronic message.
Recipients who continue to receive commercial electronic messages from your business after opting out have the right to make a complaint to the regulator. The Australian regulator, known as the Australia Communications and Media Authority (ACMA), oversees these complaints.
ACMA has the power to find there has been a breach of the Spam Act and:
- take the matter to the Federal Court, and impose significant penalties;
- issue infringement notices;
- provide formal warnings; and
- accept court-enforceable undertakings.
Examples of Opt-Out Messages
Some examples of opt-out messages include the following.
Email: If you would prefer not to receive these emails anymore, just reply with ‘unsubscribe’ in the subject. Alternatively, click the ‘unsubscribe’ button below.
SMS: To opt-out of these messages, reply with STOP.
How to Have an Effective Opt-Out Process
Your business needs to include a functional opt-out facility and promptly act on opt-out requests.
It can be beneficial to use a mailing tool which:
- automatically includes a functional opt-out facility in your commercial emails; and
- instantly unsubscribes recipients who choose to opt-out.
While automated systems are useful, they should not replace your internal due diligence. IT staff should regularly perform checks to monitor the opt-out facility and ensure it remains functional.
You also need to ensure that you record any recipient opt-outs. Furthermore, you must record any manual opt-outs that staff action. Staff should also receive training on spam.
Key Takeaways
When sending an electronic message, you must determine whether it is a commercial message. If it is, you must meet three requirements:
- acquire consent;
- identify the sender; and
- provide a functional opt-out facility.
You should be aware of the legal requirements for opt-outs and follow through on these. In particular, it is key to avoid sending further commercial electronic messages to a recipient who has opted out of receiving such messages.
If you need help with understanding and complying with your Australian spam obligations, LegalVision’s experienced e-commerce lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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