If you are thinking of sending out marketing or advertising material to promote your business’ products or services, then you need to consider the legal implications of this activity. In Australia, the Australian Privacy Principles and the Spam Act regulate how and when you can contact people in this way.

Business cards

Greg was at a networking event and collected a number of business cards from businesses in his industry sector. He now wishes to email them some discount offers and see what he can do for their business. Can Greg contact these people in this way? Generally, if someone hands you a business card, they are expecting that there is a possibility that they might hear from you.

Under the Privacy Act, you need to provide the other person with a ‘Collection Notice.’  This notifies the person that you are collecting their information for a specific use. Here, it is to send them some discount offers. At the time when they hand Greg their business card, he could ask if they would be interested in some discount offers that he could email through.

If he doesn’t have an opportunity to do this, then he would need to get consent. He could either call or email and confirm that this would be OK.  Greg would need to explain who he is, how he met them, how he will use their details, and perhaps a gentle reminder as to how he acquired to their business card.

Greg also has the option of posting them his offers and information along with a Collection Notice. One thing to note is that he needs to provide them the option to ‘unsubscribe’ from receiving his offers and material. The option to unsubscribe must be easy and must accompany all communication that Greg sends.

Websites

Many businesses have their contact details and information about their employees on their websites. Greg is thinking of contacting other businesses this way and wants to know if it’s acceptable for him to do so. If a business has included contact details on their website, it is not unreasonable to assume you have their consent to contact them. That is, provided there is nothing on their website stating that you cannot use their personal information for marketing purposes. You may even recall seeing on some business sites that you can only contact their employees for work-related enquiries.

The Spam Act states that if an electronic address is published ‘conspicuously’, meaning that it is publicly accessible, this amounts to inferred consent. One such example is posting these details on a website. There must also be a ‘strong link’ between the goods or services that you are promoting and the intended recipient’s role/business. Independent of how necessary you think your product may be for a business, conviction and self-belief do not amount to inferred consent.

For example, assume Greg would like to contact an IT manager to suggest that they might be interested in purchasing some hardware and software from Greg’s business. This directly relates to their area of expertise, and may be a product of genuine interest. Greg could not, however, contact this IT manager offering a discount subscription to Country Life magazine. This is wholly unrelated to his position, even if he has reason to believe that the gentleman may be interested in the magazine.

Conclusion

Are you unsure whether your advertising or marketing activity will be affected by Privacy Legislation or the Spam Act? LegalVision’s business lawyers can advise you on your position and how you can move forward. Please get in touch with us today on 1300 544 755.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Bianca Reynolds

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