Reading time: 3 minutes

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.

***

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

Webinars

How Franchisors Can Avoid Misleading and Deceptive Conduct

Wednesday 18 May | 11:00 - 11:45am

Online
Ensure your franchise is not accused of misleading and deceptive conduct. Register for our free webinar today.
Register Now

New Kid on the Blockchain: Understanding the Proposed Laws for Crypto, NFT and Blockchain Projects

Wednesday 25 May | 10:00 - 10:45am

Online
If you operate in the crypto space, ensure you understand the Federal Government’s proposed licensing and regulation changes. Register today for our free webinar.
Register Now

How to Expand Your Business Into a Franchise

Thursday 26 May | 11:00 - 11:45am

Online
Drive rapid growth in your business by turning it into a franchise. To learn how, join our free webinar. Register today.
Register Now

Day in Court: What Happens When Your Business Goes to Court

Thursday 2 June | 11:00 - 11:45am

Online
If your business is going to court, then you need to understand the process. Our free webinar will explain.
Register Now

How to Manage a Construction Dispute

Thursday 9 June | 11:00 - 11:45am

Online
Protect your construction firm from disputes. To understand how, join our free webinar.
Register Now

Startup Financing: Venture Debt 101

Thursday 23 June | 11:00 - 11:45am

Online
Learn how venture debt can help take your startup to the next level. Register for our free webinar today.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer