Data is an important product for all types of organisations. Businesses often rely on email marketing and promotions to provide their customers with information about new products or to engage new customers and expand their reach. Due to the increasing value of data and personal information, the Spam Act 2003 (Cth) (Spam Act) restricts spam with the aim of protecting individuals from aggressive marketing strategies. Australian Communications and Media Authority (ACMA) monitors compliance with the Spam Act. This article considers which organisations are exempt from the Spam Act.
What is the Spam Act and When Does It Apply?
The Spam Act covers and regulates all commercial electronic messages sent by businesses that are not otherwise exempt. Commercial electronic messages may include messages whose purpose is to advertise:
- the supply of goods and/or services;
- an interest in land;
- a supplier of land; or
- a business or investment opportunity.
Additionally, the message must be sent using an internet carriage service to an email, instant messaging, or telephone account. This includes social media accounts and text messages.
Notably, even if your business is not required to comply with Australian privacy laws, it will still be required to comply with the Spam Act. That is, there is no minimum threshold for businesses to whom the Spam Act applies.
Exemptions
Not every organisation is restricted from sending commercial electronic messages. The Spam Act permits the sending of ‘designated commercial electronic messages’, which are messages by:
- government bodies;
- registered political parties;
- registered charities; and
- educational institutions (sent to current and past students as well as their households).
However, such entities can only send messages related to their own goods or services.
Similarly, businesses that are not any of the entities listed above may send designated commercial electronic messages if the message consists of no more than factual information. However, you should use caution when sending a designated commercial electronic message. This is because anything in the message that could be considered marketing or promotional material means the entire message is commercial. Consequently, the message is subject to the restrictions set out below. An example of this may be a link to a recent promotion your business is offering in the footer of the email.
Continue reading this article below the formWhen Can a Business Send Marketing Material?
The Spam Act sets out three requirements businesses must follow when sending marketing or promotional material to anyone.
1. Get Permission From the Recipient
The most essential requirement is to have consent from the recipient before sending them marketing or promotional material. Consent may be explicit, for instance, the recipient opts in to receive your direct marketing emails. Alternatively, it may be inferred. You must not send a commercial electronic message to an individual without their inferred or express consent.
For example, you may infer permission to send the message if the recipient has knowingly given their contact information (such as when signing up for an account with your business). Likewise, it must be reasonable to believe that the recipient would expect to receive the message from your business.
2. Identify Yourself as the Sender
Your message must accurately identify your business details, including the correct contact details for you and your business.
3. Make It Easy to Unsubscribe
Every commercial message must include an easy-to-use and free unsubscribe facility. Your business should action requests within five working days, although most facilities have immediate unsubscribe facilities.
ACMA has the power to complete investigations and issue fines to businesses contravening the Spam Act in one or multiple ways. This includes:
- sending a commercial electronic message to an individual more than five business days after the individual withdrew consent through an unsubscribe link;
- sending a commercial electronic message without a functional unsubscribe link;
- by allowing the individual to unsubscribe only if they provided personal information; and
- only allowing an individual to unsubscribe from future commercial electronic messages if they logged into or created an account.
Address Harvesting Software
In addition to the above restrictions, the law prohibits businesses from using address-harvesting software. Nor can your business use lists that are created through the use of address-harvesting software. This includes software that is specifically designed to search the internet for electronic addresses and compile them into a database.
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Key Takeaways
It is essential you understand whether your organisation has any obligations under the Spam Act and comply accordingly. Failure to meet these requirements may be a breach of the law. To avoid investigation by ACMA, your business should consider the following measures:
- categorise each message as a commercial electronic message;
- review your consent records and ensure you have valid consent before sending commercial electronic messages to that individual; and
- ensure all commercial electronic messages contain a functional unsubscribe link.
If you need help understanding your obligations under the Spam Act, our experienced privacy 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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