Digital marketing has become an instrumental tool for businesses seeking successful marketing efforts. One tool digital marketers have at their disposal is email or SMS marketing. These digital marketing tools can be particularly effective in sending out widespread marketing messages to a wide array of different individuals or companies.
However, if you are a business operating in Australia you might not be carrying out the proper and legal practices when it comes to your practices surrounding email and SMS marketing. This aspect of marketing is governed by the Spam Act that was introduced in 2003. It is essential that every organization that sends electronic messages with an Australian link is familiar with these laws and abides by them. This blog will explore what exactly the Spam Act is and how you can follow its guidelines.
What is the Spam Act?
As mentioned the Spam Act is a set of laws that influence when and how companies can send electronic marketing messages, such as emails and SMS, to both individuals and organizations. The laws mainly revolve around the idea of consent for receiving electronic marketing messages. Within the set of laws two key forms of consent are set out, these being ‘express consent’ and ‘inferred consent’:
Express Consent:
Express consent refers to the situation where a person knowingly accepts to receive marketing emails or messages from your organization. Express consent is widely seen as the most effective form of gaining consent and is the best practice. This type of consent can be given in a variety of ways with the most common being the following: filling in a consent form, ticking a consent box on a website, delivering a message of consent via phone, and providing consent in a face-to-face meeting. It is important for any organization that receives consent from another party. It is to keep a record of this including who gave the consent, when this happened, and how they gave consent. It is important to note that you cannot send an electronic message to ask for consent as this itself counts as a marketing message.
Inferred Consent:
In some cases, you may be able to infer that you have consent to send marketing emails, but this is only if specific conditions are met. Such a case occurs when the prospective recipient has knowingly and directly given you their email address and it is reasonable to believe they would expect to receive electronic marketing messages for your business. This usually means that the person has a provable and ongoing relationship with your business and the electronic marketing messages you plan to send out are directly related to that relationship.
Here is an example to illustrate this using a telecommunications company where express consent has not been given, but the company still has communication details and is figuring out if they have inferred consent as a result: If someone is a customer of a mobile network provider then the provider can send them promotional offers about relevant services such as mobile data package offers as this is directly related to the service the customer uses and inferred consent would be applicable. However, say for instance the telecommunications company was running a marketing campaign about something unrelated to their services – let’s say they partnered with a travel agency and were marketing a traveling service – they would no longer have inferred consent, and therefore it would not be legal for them to send electronic marketing messages about this to their customers. This is because inferred consent only relates marketing messages surrounding products or services directly related to something that a customer has demonstrated a clear interest in. A marketing message for a mobile data plan is directly related, but a travel service is not.
It is important to note that just because an email address is publicly available, this does not mean that the person has given consent to receive marketing emails. There is, however, an exception to this rule. If an email is published in such a way that allows the public to send messages to specific people – such as an individual employee, a director, or someone with a specific role within the company – then it is reasonable to assume that the email was published with the person’s permission. However, to send these individuals marketing emails there must be no written disclaimer to say that the individual does not want to receive unsolicited emails.
Ultimately inferred consent is not as reliable as getting express consent from an individual or organisation and has far more stipulations around it. For this reason, organizations must send out electronic marketing messages based on inferred consent to keep a clear record of their actions and how the electronic marketing message directly relates to the relationship held between the two parties. Regardless, it is advisable to try and seek out express consent rather than inferred consent.
Email Lists:
Email lists are naturally a valuable tool for digital marketers aiming to send out marketing emails. However, the nature of the Spam Act means that marketers must take care when using them. Buying or using an email list requires care being taken to ensure that the companies or individuals on that list have actually consented to having marketing emails sent to them. If any address on these lists has not given consent then it still counts as a violation of the Spam Act.
You Must Identify Yourself as the Sender:
In your electronic marketing message, you must both accurately identify your name or business name and include the correct contact details for you or your business. Even if someone else sends the electronic marketing messages on your behalf they must still identify you as the business that authorized the message. Equally, it is important to ensure that the identification of your business includes the correct legal name or your name and Australian Business Number. It is also important to note that this information must remain correct for at least 30 days after you send the electronic marketing message to stay by the Spam Act.
Make it Easy to Unsubscribe
Any electronic marketing message sent must make it easy for people to unsubscribe from the mailing list. Under the Spam Act, every commercial message must contain an ‘unsubscribe’ option that meets the following criteria:
- It must present unsubscribe instructions in a clear manner
- It honors any request to unsubscribe within 5 working days
- It does not require a payment or fee to unsubscribe
- If via SMS, it does not cost more than the usual amount to use the address e.g. a standard text charge
- It remains functional for at least 30 days after the message is sent
- It does not require the individual or company to give extra personal information to unsubscribe
- It does not require the individual or company to log into a service and create an account to unsubscribe from marketing messages
Other Violations of the Spam Act
There are a series of other violations that can break the Spam Act that companies must therefore be aware of. Firstly, under the Spam Act, you cannot use or supply a list that has been created with address-harvesting software. Equally, you cannot directly use or supply an address-harvesting software. It is also against the Act to help, guide, or work with another company or person to break the Spam rules. Encouraging another individual to break the Spam rules is also not permitted. Naturally, being directly or indirectly involved in breaking the Spam Act is illegal.
What are the Punishments in the Spam Act?
As is the case with breaking any set of laws, penalties will be incurred when doing so. The Spam Act sets out the penalties that will be incurred. If a notice relates to a single alleged contravention the number of penalty units awarded is 20. If a notice relates to more than one but fewer than 50 alleged contraventions, the number of penalty units is obtained by multiplying 20 by the number of alleged offenses. If the number of alleged contraventions is 50 or more then the number of penalty units is 1000. Currently, one penalty unit is equal to 313 AUD, this means the fine resulting from the maximum number would amount to 313,000 AUD. Undoubtedly, this stresses the importance of abiding by the rules outlined within the Spam Act. A fine can be issued that can potentially reach such a high level would be detrimental to any company.
This blog has hopefully taught you a little bit more about the Spam Act. As has been made clear, the Spam Act is something that marketers in Australia must take seriously to avoid breaking any laws and incurring any of the major penalties that represent the punishment for doing so. Moving forward make sure that your marketing efforts fall in line with proper practices and that you follow the Australian Spam Act 2003.
Legal Disclaimer
In this blog, RNS Services provides general information about the Australian Spam Act 2003. Whilst at the time of writing the information is correct and up-to-date, there is no guarantee that laws won’t change or be amended moving forward. The information within this blog does not constitute legal advice. You should not rely, for legal advice, on statements or representations made within this blog post. If you require legal advice, that you intend to rely on, please contact a trained legal professional to acquire this. RNS Services does not assume any responsibility for actions or non-actions taken by people who have read this blog. Nobody shall be entitled to claim for detrimental reliance on any information provided or expressed.
