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‘Spam’ is a term 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, it is important that you understand what Australian spam law prohibits you from doing and what it requires you to do. A key condition for meeting the spam law requirements is to include an opt-out in the message. This article looks at: 

  • the opt-out requirements are; and 
  • what happens if you do not honour an opt-out request.

What Is Spam?

The key Australian law on spam is called the Spam Act. Unless you meet certain requirements, the Spam Act prohibits you from sending electronic messages where: 

  • there is an Australian link; and 
  • the purpose or one of the purposes of the message is commercial.

What Is an Australian Link?

An electronic message has an Australian link if:

  • the message originates from Australia; or
  • the sender or person who authorised the message is controlled by an entity within Australia. 

What Is an Electronic Message?

The Spam Act only applies to electronic messages, such as emails, text messages and Whatsapp messages. It does not apply to 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 send a commercial electronic message only if the following three requirements are met.

1. Consent

The recipient must consent to the sending of 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 conspicuous 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.

When 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. 

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.

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 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 may make a complaint to the regulator. The Australian regulator for spam is the Australia Communications and Media Authority (ACMA). 

ACMA has the power to find there has been a breach of the Spam Act and:

  • take the matter to the Federal Court, which can impose significant penalties;
  • give infringement notices;
  • issue formal warnings; and
  • accept court-enforceable undertakings.

In 2020, ACMA took action against an Australian telecommunications company and a large Australian retailer. The telecommunications company:

  • continued to send commercial electronic messages after consent was withdrawn; and 
  • sent commercial electronic messages without a functional unsubscribe facility. 

The Australian retailer continued to send commercial electronic messages after recipients had opted-out.

In these cases, ACMA imposed infringement notices of $504,000 and $1,003,800 respectively and accepted enforceable undertakings from each business to take steps to review their processes. 

How to Have an Effective Opt-Out Process

Clearly, including a functional opt-out facility and promptly acting on opt-out requests is important.

It can be beneficial to use a mailing tool which:

  • automatically includes a functional opt-out facility in your commercial emails; and 
  • automatically unsubscribes recipients who opt-out.

While automated systems are useful, you also need to perform your own internal due diligence. It is important to have IT staff monitoring the opt-out facility to ensure it remains functional. 

You also need to ensure that any opt-out is reflected in the recipient’s record for all staff and that any manual opt-out is also recorded and acted on. Staff should also receive training on spam.

Key Takeaways

When sending an electronic message, it is vital to assess whether it is a commercial message. If it is, you must meet three requirements:

  • consent;
  • sender identification; and
  • a functional opt-out facility. 

It is important that you are aware of the legal requirements for the opt-out and that you 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, contact LegalVision’s e-commerce lawyers on 1300 544 755 or fill out the form on this page.

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