The Spam Act prohibits the sending of unsolicited commercial electronic messages - known as spam - with an Australian link. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.
Key to the Spam Act is that you must have the person's permission to send them an email or a SMS. As a message sender, you can be found liable for a breach of the Spam Act, even though you are not the authoriser of the message.
What is a commercial electronic message?
The Spam Act defines a commercial electronic message as any electronic message that:
- Offers, advertises or promotes the supply of goods, services, land or business or investment opportunities
- Advertises or promotes a supplier of goods, services, land or a provider of business or investment opportunities
- Assists a person to dishonestly obtain property, financial advantage or other gain from another person.
The Act classifies an electronic message as ‘commercial' by considering:
- The content of the message
- The way in which the message is presented
- Any links, phone numbers or contact information in the message that lead to content that has a commercial purpose - as these may also lead the message to be defined as 'commercial' in nature.
Requirements of the Spam Act
If a business uses any form of e-marketing, including email, SMS (text message), MMS (image-based text messages) or instant messaging, you must understand and meet the following three key requirements of the Spam Act:
1. Consent - the message must be sent with the recipient's consent. The recipient may give express consent, or under certain circumstances consent may be inferred from their conduct or an existing business or other relationships
2. Identify - the message must contain accurate information about the person or organisation that authorised the sending of the message and how to contact them
3. Unsubscribe - the message must contain a functional 'unsubscribe' facility to allow the recipient to opt out from receiving messages from that source in the future. Unsubscribe requests must be honoured within five working days. Ensure that unsubscribe facilities are tested regularly and functioning correctly.
A message does not necessarily have to be sent out to numerous addresses to be considered spam. Under Australian law, a single electronic message can be considered spam.
More on permission
It is important to remember that the publication of an email address or mobile telephone number in itself does not mean there is consent to send commercial electronic messages to it:
- Can you send an electronic message to customers to obtain their consent to send messages in the future? NO
- Can you use a pre-ticked boxes to obtain consent to send marketing messages? NO
- If recipients don’t object or unsubscribe, can I assume I have consent? NO
For express consent to exist, a person must actively and deliberately give consent to receiving commercial electronic messages, either by checking the tick box themselves or by giving consent in some other clear and transparent way (for example, typing their email address into the 'consent' field of a web form).
If you purchase marketing lists to send commercial electronic messages, it is your responsibility to determine whether consent has been obtained from each person on the list. Under the Spam Act, you may have to prove that consent has been obtained to send messages. It is not sufficient to assume that mobile telephone numbers or email addresses have been obtained with the consent of the account-holder without having proof of this from the provider
Therefore when purchasing a marketing list, seek written details of how the provider obtained the email addresses or mobile telephone numbers and under what terms and conditions. Keep in mind that when you do have consent, you still need to meet the other two requirements: accurate sender identification information and an unsubscribe facility in your messages.
If you’re planning a telemarketing campaign, make sure to check your targets are not listed on the Do Not Call Registry
Exemptions to the Spam Act
If the message contains only purely factual information, with no commercial content or purpose, then it may be a message that is permitted under the Spam Act. These messages do not have to meet the consent or unsubscribe conditions of the Act. But it must still contain accurate information to identify the person or business that authorised it to be sent.
To be 'purely factual', a message must not contain any information that promotes any business, product or service. Any links to websites contained within the message must also lead to purely factual information.
To fall within the factual information exemption, a message can only contain factual information, directly related comment (of a non-commercial nature), and the following limited 'commercial' information:
- The name, logo and contact details of the person who authorised the sending of the message, or the name and contact details of its author
- The name, logo and contact details of the author's employer, organisation, partnership or sponsor
Examples of purely factual messages include:
- Meeting minutes circulated among committee members
- A product recall notice issued for safety reasons
- An electronic neighbourhood watch newsletter that is sponsored by a local business
- Advice on entitlements for citizens or community groups that does not refer to a service in the course of trade or commerce
- An email sent to a business requesting a quote, price list or product description.
Sending purely factual information is acceptable, provided the messages contain the required identifying information. However, this does not mean you have the recipients’ consent to send future commercial messages, or to add them to a mailing list.
Exceptions due to an existing relationship
If you have an existing relationship with that person (e.g. they're a client on your database), and they have made an enquiry or purchase, you have that person’s consent to send them a commercial electronic message related to their enquiry. You may also include extra information (such as price lists and a link to your website) if the customer could reasonably expect to receive such information as a result of their enquiry.
Generally, you cannot add a person to a mailing list on the basis of a one-off enquiry. You need to determine whether they would have a reasonable expectation of receiving your commercial electronic messages. This will relate to the nature of their initial enquiry.
Exceptions for obtaining data from online
In certain circumstances, consent to receive a commercial electronic message may be inferred if a person has published their work-related email address or mobile telephone number and:
- It is accessible to the public or a section of the public (for example, it appears on a website, telephone directory or brochure)
- It is not accompanied by a statement that commercial messages are not wanted
- There is a strong link between what you are promoting and the person's role or line of business. You cannot infer someone's consent just because you believe your product or service will benefit them.
Information on business cards is not conspicuously published and you must consider the circumstances and purpose of your receiving the card before deciding whether you have inferred consent.
All commercial messages sent with inferred consent must also meet the identification and unsubscribe requirements of the Spam Act.
Please note that this is not legal advice, but our interpretation of The Spam Act