The Australian Communications and Media Authority (ACMA) issued online marketing business, Web 1000 a formal warning for breaching the Spam Act 2003. ACMA considered unsolicited marketing emails sent by Darren James trading as Web 1000 spam as they were sent without the individual’s consent. 

Who is the Australian Communications and Media Authority?

ACMA is the government body which regulates within the media and communications sphere. It interacts with legislation, codes of conduct and stands relating to telecommunications, broadcasting, radiocommunications and the internet.

ACMA can enforce the Spam Act where it finds a breach. A formal warning is one of the remedies available to ACMA in response to a breach, and ACMA has these warnings in the past where there are serious concerns. The formal warning is effective in making the offender take steps to avoid future breaches, and usually, no further remedy is required.

What is the Spam Act?

The Act prohibits spam. That is, ‘unsolicited commercial electronic messages’ and includes email, mobile phone messaging and instant messaging.

There are three elements which must be present for an electronic message not to be spam. If these do not exist in relation to a message, then it is likely to be spam. An electronic message constitutes spam if it is sent without the receiver’s express or implied consent. Consent may be inferred if there is an existing relationship from business dealings or other relationships. It is also likely to be spam if the message does not identify the sender (either an individual or a business). The third indication of spam is whether there is an ‘unsubscribe’ facility that lets the sender know the receiver does not wish to remain part of the mailing list.

How had Web 1000 Breached the Act?

ACMA’s investigation into Web 1000’s marketing emails centred on the question of consent and whether Web 1000 did have the consent of the email recipients. James claimed that the mailing list he used was developed through a combination of marketing lists that he had purchased from third parties and direct enquiries that came through his website. Unfortunately, James was unable to show evidence of consent as he had not kept any records detailing the consent from the recipients.

Make Sure You’re Not Sending Spam

Remember the three things that are required for marketing emails not to constitute spam: 

  1. Consent
  2. Identification; and 
  3. An unsubscribe option. 

It is insufficient to claim that the recipients have consented to such correspondence – a business also needs to support the claim. Consent is a requirement to prove that an electronic message is not spam, but is allowed as part of the relationship between the sender and the receiver. James claimed that he had consent to send the messages, but he did not have any proof to show that the recipients had agreed. It is not uncommon for businesses to purchase a mailing list from third parties. In these cases, it is all the more important for the business to keep records so as to show evidence of the recipient’s consent.

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If you have any questions about the Spam Act and email marketing, get in touch with our IT lawyers on 1300 544 755. 

Dhanu Eliezer

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