Email spam is annoying – and it is increasing. If you are a a business that sends emails to your clients then you need to be aware of what the legislation is. Many businesses do not understand the Spam Act and in most cases, are actually breaching some of the requirements by managing their own email campaigns. In short, you may not email anyone unless you have their express or inferred consent. This includes sending an email to establish a future commercial relationship.
ACMA: Australian Communications and Media Authority is responsible for administering the Spam Act and investigating complaints. This information has been taken directly from the ACMA website.
What is spam?
Spam is the common term for electronic ‘junk mail’-unwanted messages sent to your email account or mobile phone. Under Australian law, spam is defined as ‘unsolicited commercial electronic messaging’.
Some spam promotes a product or invites you to visit a website; other spam tries to trick you into investing in fraudulent schemes, or revealing your bank account or credit card details. Email spam often carries viruses.
The Spam Act 2003 covers email, mobile phone messages (text messages/SMS, MMS) and instant messaging. It is enforced by the Australian Communications and Media Authority (ACMA). The Spam Act does not cover faxes, voice telemarketing or internet pop-ups.
How can I tell if it’s spam?
Any commercial message sent to you by email or to your mobile phone that does not meet the following conditions is breaking Australia’s spam laws:
- Consent: it must be sent with your consent.
- Identify: it must contain accurate information about the person or organisation that authorised the sending of the message.
- Unsubscribe: it must contain a functional ‘unsubscribe’ facility to allow you to opt out from receiving messages from that source. Your request must be honoured within five working days.
The Spam Act 2003 states that for all commercial electronic messages sent by a business or organisation, meeting the consent requirement is mandatory. There are two types of consent—express and inferred.
When an individual or organisation first provides their email address, and you plan to send them a commercial electronic message, you must first get their express consent.
Express consent comes in many ways—filling in a form, ticking a box on a website, over the phone, face-to-face or by swapping business cards—as long as the recipient is aware they may receive commercial messages. You cannot send an electronic message to seek consent—this is in itself a commercial message because it seeks to establish a business relationship.
Businesses should keep a record of all instances where consent is given, including who gave the consent and how. Under the Act, it is up to the sender to prove that consent exists.
Inferred consent can occur:
- Via an existing business or other relationship, where there is reasonable expectation of receiving commercial electronic messages
- Via conspicuous publication of a work-related electronic address because it is accessible to the public, or a section of the public
- If the address is not accompanied by a statement saying no commercial messages are wanted the subject of the message is directly related to the role or function of the recipient.
How do I prove sufficient consent to send messages?
Keeping records is essential, as the burden of proving consent lies with the sender. Many e-mail and SMS systems have the capacity to record opt-ins and opt-outs of your database as a built-in process. However, consent, message-sending activity and unsubscribe requests can be incorporated into a simple spreadsheet or sophisticated customer relationship management system. Using a double opt-in process, where the subscriber confirms a subscription request by reply email or SMS before they are subscribed is a good way to ensure that consent has been recorded.
Can I electronically message customers to obtain their consent to send messages?
No. Unsolicited commercial electronic messages cannot be used to gain consent.
Can I use pre-ticked boxes to obtain consent to send messages?
No. Pre-checked tick boxes—for example, on a website where people can join a mailing list—are not an acceptable way of gaining consent.
Do I have consent if recipients don’t object or unsubscribe?
No. Silence does not constitute consent.
Can someone subscribe or give consent on someone else’s behalf?
No, not unless they do so using that person’s email account. Consent to receive commercial electronic messages must be given by the relevant electronic account-holder—the person responsible for that account.
Can I contact someone who has published their email or phone number online?
Consent is only inferred if the contact details are published and:
- They are accessible to the public
- They are not accompanied but a statement saying commercial messages are not wanted
- There is a strong link between what you’re promoting and the recipient’s business