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For small businesses trying to crack the market, maintaining customer contact is a crucial part of staying on top of the game. If you are planning to use electronic messages to contact your customers, whether that be e-mail, SMS or instant online notifications, you will need to understand your obligations under Australian law, particularly the Spam Act 2003 (Cth) (“The Spam Act”). There are many articles available online about e-mail marketing and tips to engage your customer. This article won’t be running through engagement, click rates or conversions, but will highlight some key legal considerations when it comes to electronic messaging in all its forms.

Give Me the Option to Unsubscribe

This is by far one of the main ways the Spam Act aims to protect consumers when it comes to dealing with businesses. The option to unsubscribe builds more trust in your customer relationship and also ensures you are complying with the Spam Act. When you provide another party with the option to unsubscribe, you need to ensure:

  • the instructions are clear and simple to understand;
  • the unsubscription is put into effect within five working days;
  • the unsubscriber incurs only a minimum level of cost to request for an unsubscription; and
  • the unsubscribe message must be passed on to the original organisation who requested the electronic message be sent.

A simple way to allow consumers to unsubscribe is through an electronic link that leads to the removal of an e-mail address from a mailing list.

Get Consent

The Spam Act has extensive provisions on what constitutes consent. This can include express or inferred consent. Inferred consent can arise in circumstances when you have an ongoing business relationship with another party. If a work-related e-mail address is available online, this may also infer permission for external parties to contact you.

If you are a small business, however, with no extensive plans to market extensively beyond your current customer or potential customer database, express consent can be obtained through various means. For businesses with an online presence, it essentially comes down to the terms and conditions at which an individual has provided you with their details. Consent can be achieved through the acceptance of terms and conditions online.

Identify Who You Are

If you plan to send electronic messages, you need to inform the receiver who you are; whether that be you personally or your business entity. You will also need to use legal names to identify who has sent the message. If you are using a separate business to assist in sending out electronic messages on your behalf, this external party needs to note down your business as the entity who authorised the transmission of the message.


Many small businesses are moving online or are establishing their entire business through online communication. If you are one of these businesses, it is important to be aware of how you can interact with your customers, not only from a marketing perspective but also from a legal perspective. If you are uncertain as to whether you are complying with the Spam Act, speak to one of our experienced online lawyers to receive advice or the necessary legal documentation. 

Questions? Please get in touch on 1300 544 755.


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