ELECTRONIC MARKETING AND THE SPAM ACT 2003

Businesses will often promote goods and services by way of email and other electronic marketing

Such electronic marketing will usually be a “commercial electronic message” for the purpose of the SPAM Act 2003 (Cth) (Act), and, if so, will require the business sending the message to comply with the Act to avoid penalties under the Act.

In this article, a brief overview is provided of what a commercial electronic message is and what steps need to be taken to comply with the Act when sending a commercial electronic message.

What is a commercial electronic message?

The Act applies to commercial electronic messages. The following information can help a business identify if a message is a commercial electronic message:

• the most common electronic messages include messages sent by email, instant messaging, SMS or MMS;

• an electronic message is a commercial electronic message if it contains a commercial message, for example, the message content offers to supply goods or services, or promotes the goods or services, supplied by the business and/or third parties. The content, the presentation of the message and the content that can be located/accessed using links, telephone numbers or other contact information will be considered in deciding if the message is a commercial electronic message (for this reason a factual message with a link to commercial content on a website is very likely to be a commercial electronic message); and

• the message has an Australian link. An Australian link is defined broadly in the Act, including the messages originates in Australia, is sent to an individual present in Australia or an organisation with central management and control in Australia.

What requirements apply to commercial electronic messages?

Generally, the three main requirements of the Act for sending commercial electronic messages, expanded on below, are:

• the recipient consents to receiving the commercial electronic message;

• the sender’s information is clearly set out; and

• there is a functional unsubscribe facility.

Recipient’s consent

In order to send a commercial electronic message, the business must have the express or inferred consent of the recipient:

• express consent may be obtained in writing, for example, by a person ticking a box with appropriate wording confirming that consent to receive electronic marketing (pre-ticked boxes are not sufficient for consent). The explanatory memorandum to the Act also notes verbal requests for marketing may be express consent. If relying on verbal consent, we recommend making a written record that verbal consent was obtained (including the date and who provided the consent). Although verbal express consent may be possible, it is important to note that written consent is likely to provide clearer evidence.

• consent may be inferred from the conduct and the business and other relationships of the individual and the business. Whether there is inferred consent will depend on the circumstances on which the inferred consent is being based. If relying on inferred consent, we recommend making a written record of the circumstances on which the inferred consent is based.

If relying on consent to establish compliance with the Act in sending a commercial electronic message, it is the sender who must prove they have the consent.

‘Refer a friend’ type campaigns:

These types of campaigns have a person submit the contact information of a ‘friend’ to the business so the business can send a commercial electronic message to the ‘friend’ or have a contractor, such as a mailing house, send the commercial electronic message to the ‘friend’. Such campaigns may also ask the person to forward a commercial electronic message onto a ‘friend’. If it is found that the business sent the commercial electronic message, or caused it to be sent, without the consent of the ‘friend’, then the business will have contravened the Act.

Sender’s information

If the business sends a commercial electronic message, clear and accurate information about the business or the person sending the message must be clearly set out in the message, as follows:

• the business or person sending the message must be clearly identified; and

• details of where the business or person can easily be contacted must be provided.

The information provided in the commercial electronic message must be valid for at least 30 days after the message is sent.

Unsubscribe facility

The commercial electronic message must have an unsubscribe facility that is clear and conspicuous, together with a statement to the effect that the recipient may unsubscribe from receiving commercial electronic messages by using the electronic address (unsubscribe facility) provided in the commercial electronic message.

The recipient must not need more than their electronic address to confirm the unsubscribe request, be required to log into an account or incur a fee for using the unsubscribe facility (other than the usual cost for using the unsubscribe facility, for example the cost of sending an email or SMS message).

The unsubscribe facility provided must be capable of receiving the unsubscribe requests from all recipients who may make an unsubscribe request following the receipt of the commercial electronic message and be monitored for at least 30 days after the commercial electronic message is sent. What if the person chooses to unsubscribe?

A request to unsubscribe must take effect within five business days of receipt of the unsubscribe request.

Takeaways

The key takeaways are:

• ensure the business has consent to send the commercial electronic message;

• ensure the business information is clearly set out in the commercial electronic message;

• ensure the commercial electronic message has an unsubscribe facility that is functional for 30 days; and

• if the business receives an unsubscribe request, ensure it takes effect within 5 business days.

Liability limited by a scheme approved under professional standards legislation.

This document is intended for general information purposes only and should not be regarded as legal advice. Please contact Industry Legal if you require legal advice

AAAA Member Benefits

Industry Legal provides advice to AAAA members on commercial law matters. If you have any questions relating to the above information, please contact Industry Legal on 1300 369 703 or aaaa@industrylegalgroup.com.au