If your business is sending electronic newsletters to subscribers, you need to have an unsubscribe button allowing them to opt-out. It is also important to have their consent before sending the newsletter. This is because, in Australia, the Spam Act prohibits the sending of “unsolicited commercial electronic messages”, known as spam, if the messages originated, or were commissioned in, Australia. This article will explain whether you need an unsubscribe button on your business’ newsletter.

What is a “Commercial Electronic Message”?

The term “commercial electronic message” covers a wide range of messages. It includes anything that offers, advertises or promotes the supply of goods, services or investment opportunities. In determining this, you must consider the content, presentation and your access to other supplementary information.

For example, an email confirmation to a customer about the product they have ordered may be a commercial electronic message. Furthermore, an email with links at the bottom directing the customer to other products they can buy from your business may also count. However, commercial electronic messaging does not include merely ‘factual’ messages, such as a bank sending you an email that your account is overdrawn or a doctor’s office sending you an SMS appointment reminder.

As a business, you can choose to send commercial electronic messages by emailing a newsletter to your subscribers or posting SMS updates about the services you are offering. If you are going ahead with a newsletter, you should include in it your:

This is because the person who receives the newsletter must be able to identify you, as the sender.

How Do I Get Consent?

If you are sending commercial electronic messages in the form of a newsletter, you must have the recipient’s consent. As the sender, it is your responsibility to prove that the person has given, and not withdrawn, consent.

There are different types of consent and ways of getting it. For example, you can get consent by asking your subscribers to ‘opt-in’. You can do this by using a simple ‘tick box’ facility on your website asking them to consent to receive newsletters or electronic marketing from your business. If you do not have consent, any commercial electronic messages you send will be spam. If you send spam, you may be subject to penalties.

What Do I Need to Do to Allow People to Unsubscribe?

If you are sending newsletters to subscribers, you should ensure the option to unsubscribe is accessible. For example, you can use a simple ‘unsubscribe’ button somewhere on your newsletter. You need to make sure that it works and remains working for at least 30 days after your business sends the newsletter. If someone requests to unsubscribe, you must complete the process within five business days at no, or at least a low, cost to the unsubscriber.

However, a subscriber can withdraw their consent in other ways, not necessarily developed by your business. For example, they do not have to use the unsubscribe button on the newsletter. They may call or email your business to ask you to stop sending the newsletter. If they do this, you should remove them from your mailing list.

What Happens When They Unsubscribe?

Once a person has unsubscribed from your newsletter, you might decide to email them to confirm you have removed them from your mailing list at their request. You are allowed to give them your business’ contact details in case they want to re-subscribe at a later date.

An unsubscribe request means you cannot send or authorise further commercial electronic messages to be sent to that person. Without their consent, the messages are considered spam. If the person does contact you again asking to receive your newsletter, you may then resume sending it to them.

Key Takeaways

Consent is vital when sending out newsletters or any message considered to be a commercial electronic message. You need to ensure you have permission from everyone on your mailing list who receives your newsletters.

If you are contacted in any way by a person who wants to stop receiving your newsletter, you should stop sending it to them. You also need to make the unsubscribe option accessible and straightforward. If you have questions, contact LegalVision’s e-commerce lawyers on 1300 544 755 or fill out the form on this page.

Lauris De Clifford
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