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Email marketing is a very popular form of marketing and is being utilised by more businesses with the rise of email marketing software such as MailChimp, Marketo and HubSpot. But what legal issues do you need to think about when you are using these marketing systems?

When using these marketing systems, there are privacy and spam issues you need to consider. Even if you use a software system or have a third party send emails for you, it is your business’ responsibility to ensure that you are complying with your requirements and not breaching the Privacy Act 1988 (Cth) (Privacy Act) or the Spam Act 2003 (Cth) (Spam Act).

Privacy Act and Obligations

Firstly, you should understand your obligations under the Privacy Act and the Australian Privacy Principles. You should make your customers or clients aware that you will be collecting personal information such as their email and that you may be using it for marketing purposes. The use of a customer’s email for this purpose should be clearly set out in your Privacy Policy that each of your customers or clients should agree to when they use your website or complete a form.

Spam Act and Obligations

You should also be aware of the strict obligations under the Spam Act to not send unsolicited emails to customers. There are a number of ways that you can seek permission to comply with the Spam Act. You can either expressly seek consent for example by having customers tick a box or agreeing via a form that they are happy to receive correspondence, or you can also have permission to send email marketing to customers if you have inferred consent. Consent is inferred where in the course of the business relationship, the customer will expect to receive correspondence that may provide them with information about other services.

Email Marketing Obligations

When you are sending emails to customers, it should be clear which business is sending the marketing emails. You should provide sufficient contact details and set out why they are receiving emails from your business. If you do have customers on an email list, it is still very important to provide them with the option to unsubscribe at any time. The unsubscribe button should be simple and clearly accessible by customers. The unsubscribe function can be a link or request that the customer reply to the email with the title “unsubscribe”.

Usually the service you are using will set out how you should format your unsubscribe section of each email newsletter. You should ensure particularly if the software or system you are using is not Australian that it complies with Australian law in relation to unsubscribe standards. You should regularly test your unsubscribe link to ensure that it is working and make the unsubscribe process easy to understand. If the unsubscribe process requires that the customer sends you an email, you should be sure to remove the customer’s email within five days from your database.

If you are using another service to send your emails or if you are purchasing a list from another provider, you should ensure that the sender has consent to send these messages. You should also make sure that if you are using another business to send emails, you have systems in place to not breach the Privacy and Spam Acts.


If you have questions or concerns about your email marketing plans or the way in which you have procured your emails, you should seek legal advice. LegalVision can advise you on compliance issues around marketing compliance, the Spam Act and privacy laws. LegalVision also has experience with assisting businesses with advertising compliance including meeting obligations under Australian Consumer Law.

Questions? Call us on 1300 544 755.


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