What you need to know about your marketing promotions and the Australian SPAM Act 2003

By Vivian Michael | Startup Contracts

What you need to know about your marketing promotions and the Australian SPAM Act 2003

Photo by Brooke Cagle on Unsplash

If you are thinking of running a promotion to target potential customers, read on.

Below, I’ll share what you need to know to avoid spam legal trouble.

In a hurry? Jump ahead. 

Australian law 

The Spam Act 2003 (Spam Act) sets out Australia’s spam rules.

And the rules set out when you can send out commercial electronic messages and what to include in them.

Also, the key rule to keep in mind is that you need permission or consent.

Who needs to comply?

You'll need to comply with these spam rules if you (or a third party) are sending commercial electronic messages. 

And, electronic means: 

  • email
  • SMS
  • MMS
  • instant message.

When do the spam rules apply?

The spam rules apply your offer to supply, provide, advertise or solicit:

  • goods or services
  • land, or an interest in land
  • a business or investment opportunity.

Below are the principle's you'll need to keep in mind. 

Key rules

Below are the key rules you’ll need to know:

Permission (consent) 

Messages can only be sent with the permission of the person who owns the account for the address (usually the recipient). And recipients should be able to unsubscribe any time. 

TIP: Always make sure you include an unsubscribe option. Make it easy for people to unsubscribe.

An example would be someone signing up to your mailing list.  

Best practice - keep track of the sign up dates. And if you change mail service providers, make sure you download data including sign up dates before you leave your old mail service provider.

So, why keep track of your sign-ups?

Because under the Spam Act, it is up to you to prove that consent exists.

Identification

Messages must contain the name and contact details of the person or business that authorised the message (sender identification).

Recipients should not have to dig for this information - this may breach the Spam Act.

And, the information must be accurate for at least 30 days after the message is sent.

Unsubscribe

Messages must contain a low (or no cost) way for the recipient to stop getting messages (to ‘opt out’ or unsubscribe).

And, the opt-out method should be valid for at least 30 days after the message is sent.

Using public directories

You can’t infer permission to send commercial messages simply because a number or email address is published (such as online or in a directory).

And, if you want to infer permission this way, you'll need to ensure that: 

  • messages sent concern matters relevant to the role of the recipient;
  • the electronic address is for a particular employee or office holder;
  • the electronic address wasn’t published with a statement that the receiver doesn’t want to receive messages.

There needs to be a strong link between the product you are promoting and the person that receives the message.

For example, you may be able to infer consent to send a message advertising your employment agency to the recruitment manager at a business, if their electronic address has been published.

However, you could not infer consent to send the recruitment manager messages about web optimisation, as this is not directly related to their role.

Direct contact 

Messages also need to be sent to a particular employee or office holder, for example: jane.doe@business.com.au or recruitmentmanager@business.com.au. 

If you send a message to a generic email address, like info@business.com.au, then you may risk breaching the Spam Act.

Address harvesting

Address harvesting is banned under the Spam Act.

It's the process of automatically obtaining a large number of email addresses using a computer program or service. 

Purchasing lists

And, if you purchase a list, you should be careful that the list has not been created using address-harvesting software.

You will need to ask your list supplier to make sure that the list has been obtained legally and that the people on the list have given consent.

Other contraventions

You must not either directly or indirectly help, guide, encourage or work with another person to breach the spam rules.

Spam rule exemptions

Some commercial electronic messages are partially exempt from the Spam Act.

They can be sent without the permission of the recipient, and do not need to have an unsubscribe function.

Exempt messages must still comply with the sender identification rules in the Spam Act. 

Exempt message examples

Factual messages: messages that do not contain commercial material; for example, a product recall notice or an appointment reminder. 

Designated commercial messages: These are messages sent by exempt organisations, including registered charities, educational institutions (only if sent to current or former students), government bodies and registered political parties.

Finally, designated messages must relate to goods or services offered by the exempt organisation.


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About the Author

Vivian Michael is a lawyer and founder of Michael Law Group. Vivian's mission is to make quality business legal services accessible to entrepreneurs launching in Australia that would otherwise DIY, rely on legacy contracts or go without.

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