Are Your Emails and Texts Compliant with the Australian Spam Act?

Navigating the legal landscape of electronic marketing can be challenging, especially with the Spam Act 2003 regulating unsolicited commercial messages in Australia. Ensuring compliance with these rules is essential to avoid potential penalties and maintain trust with your audience. This guide provides a clear overview of the key requirements and best practices for electronic marketing under the Spam Act.

1. Understand if you need to comply

The Spam Act applies to unsolicited commercial messages sent via email, SMS, MMS, or instant messages. It does not cover voice calls, which are regulated by the Do Not Call Register Act.

2. Determine if spam rules apply to your message

The Spam Act covers messages with a commercial purpose, such as promotions or advertisements, and requires an “Australian link” – sent from or accessible in Australia.

3. If the spam rules apply to your message, follow the three requirements of the Spam Act

• Consent: Obtain permission from the recipient. Express consent is preferred, but inferred consent is acceptable if there’s an existing relationship.
• Identification: Include your business name, ABN (if applicable), and contact details.
• Unsubscribe: Provide a functional unsubscribe option. It must be easy to use and processed within five business days.

4. Consent

The Spam Act’s key requirement is that you must have explicit consent from the recipient before sending commercial e-messages.

• Express Consent: This is the ideal scenario. For instance, if someone has signed up for your mailing list through your website or given verbal consent in person or over the phone, this is clear and verifiable consent.
• Inferred Permission: You may infer consent if the recipient has provided their contact details directly and it’s reasonable to expect that they would be open to receiving marketing messages from your business. This is often applicable in cases where there is an ongoing business relationship, such as with clients, subscribers, or members. However, this does not extend to sending messages immediately after a purchase or to contacts with no prior engagement.
• Double Opt-In: Implementing a double opt-in process can enhance compliance and ensure clearer consent. This involves sending a confirmation email after the initial sign-up, requiring recipients to confirm their subscription by clicking a link. This method verifies that the recipient genuinely wishes to receive communications from you.
• Withdrawal of Consent: Recipients must have the ability to withdraw consent easily at any time. Once they unsubscribe, you must cease sending commercial messages within five business days. Keeping accurate records of consent, including details on who granted it and how, is crucial. This documentation will serve as proof of consent should any issues arise.

5. Identification

Ensure every message includes your business name, ABN (if applicable), and contact details. This information must be accessible and accurate for at least 30 days after the message is sent. Embedding this information in your email templates is a practical way to maintain compliance.

6. Unsubscribe Facility

Include a clear and functional unsubscribe option in your messages. It must be operational for at least 30 days and allow recipients to opt out without incurring any cost. Unsubscribe requests must be processed within five business days to remain compliant.

Further, when someone makes an unsubscribe request (using the unsubscribe facility  they have been directed to in the message) they should not be required to:

• Use a premium service
• Provide further personal information
• Log in to or create an account; or
• Pay a fee or charge to the sender or a related person (with some exceptions)

7. Messages partially exempt under the Spam Act

Some messages are partially exempt from the Spam Act:

• Factual messages: These include non-commercial communications like product recalls or appointment reminders, provided they don’t include advertisements or promotional content.
• Designated commercial messages: Exempt organisations such as registered charities or government bodies can send messages without requiring recipient consent. However, including identification and possibly an unsubscribe option is recommended for better practice.

 

By adhering to the Spam Act’s requirements, you can ensure your electronic marketing practices remain compliant and respectful of your recipients’ preferences. Regularly reviewing and updating your practices will help you avoid penalties and maintain a positive relationship with your audience. For further guidance or assistance, visit the Australian Communications and Media Authority website or consult with a legal professional.