Spam spam spam. It often seems like your email inbox is filled with the stuff – so much so that you’ve created a phony email account you can use for any website you think might be tempted to send you their newsletter! On the flip side, email or electronic marketing is an effective way for a business to increase awareness of the brand, introduce new products and ultimately, convert subscribers into paying customers. It’s also cheap, so email marketing has added appeal.

The Spam Act 2003 (Cth) (the Spam Act) exists to limit the emails that have the honour of clogging an inbox, as well as other electronic communications, such as SMS. The Spam Act covers commercial electronic messages which:

  • spruik investment opportunities or the entity supplying investment opportunities;
  • spruik supplying goods or services or the entity supplying goods or services; or
  • assist a person in obtaining commercial or property benefits in a dishonest manner.

It’s also important to note that to be covered by the Spam Act, the message must either originate in Australia, or the entity who sent the message must be physically present in Australia when the message was sent.

How to avoid breaching the Spam Act

The following three practices will prevent a business breaching the Spam Act:

  • consent from the addressee,
  • providing an unsubscribe function,
  • clearly identify the identity of the sender of the email.

About email marketing, let’s break these three factors down to determine how you can comply with the Spam Act.

Consent is your best friend

This is true about email marketing. Make sure that your customers or clients give you permission to send them marketing material. Let’s be honest, most of the time you provide your address details when you purchase a product online or ask for just one quote, you don’t expect to consent to receive email newsletters.

As a business owner, you can cover yourself by ensuring that sending email marketing is clearly outlined in your website’s terms and conditions, so that when customers click to accept your terms and conditions, they accept receiving email marketing.

A clear way out –  the unsubscribe function

Always include a clearly marked and functioning unsubscribe option. If you’re using any of the bigger email marketing providers such as MailChimp, this should be automatically included.

Don’t play coy with your identity

It’s a requirement of the Spam Act that it is made clear who the sender of the email is. If this is not clear, an entity can fall foul of the Spam Act.

Learning from others’ experience: Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225

Australian Communications is an extreme case with severe penalties, but it shows that the Spam Act is not toothless when it comes to breaches. Mobilegate and the people behind the company created fake dating profiles and inveigled individuals into providing their mobile phone numbers. Subscribers of the dating websites were tricked into texting people they thought were real people, using premium telephone numbers charging up to $5 per text. Mobilegate was ordered to pay a $5 million pecuniary penalty, with the other respondents paying fines in the millions. The predatory actions of Mobilegate were a key factor in the significant penalties levied under the Spam Act.

Conclusion

Running a business based on fake dating profiles isn’t the end goal of most Australians running a business. Email and electronic message marketing are a legitimate way for a business to generate interest, increase their market presence and stay in touch with potential and existing customers. Following the guidelines above are a clear way to make sure any communications sent are compliant with the Spam Act. Our contract lawyers can assist you with drafting any terms of conditions or website terms of use – just call us on 1300 544 755. Happy emailing!

Chloe Sevil

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