Stopping the Spam
What is Spam?
Spam is the common term used for electronic ‘junk mail’- the unwanted messages sent to your email account or mobile phone.
Although some spam may promote a product or even invite you to visit a website, other spam may attempt to trick you into investing in fraudulent schemes, revealing your bank account or credit card details, or downloading malicious viruses.
Under Australian law, spam is defined as ‘unsolicited commercial electronic messaging’ and is subject to strict regulation.
The Spam Act 2003 (Cth)
Businesses that rely on the use of email or SMS for marketing purposes are required to comply with the limitations provide in the Spam Act 2003 (Cth) (“the Act”).
The Act regulates electronic messages which are commercial in nature, for instance, selling or advertising goods or services, or directing the recipient to a location where goods and services are sold or advertised.
What constitutes an electronic commercial message?
Section 5 of the Action defines an ‘Electronic Commercial Message’ (“ECM”) as a message sent using an internet carriage service to an electronic address in connection with either an email account, instant messaging account or telephone account.
Some exemptions under the Act include messages which are determined to be ‘designated commercial electronic messages’.
Under Schedule 1 of the Act an ECM is a designated commercial electronic message if the message consists of no more than factual information (with or without directly-related comment) and any or all of the following additional information:
- the name, logo and contact details of the individual or organisation who authorised the sending of the message;
- the name and contact details of the author; and
- if the message is sponsored—the name, logo and contact details of the sponsor.
Elements of a compliant ECM
Generally, any ECM sent to you by email or to your mobile phone that does not meet the following conditions is violating Australian Law:
- Consent – the ECM must only be sent with the addressee’s consent – either express or inferred consent.
‘Express consent’ is where a person has specifically requested messages from you and inferred consent is where there has been no direct request but it may be a reasonable expectation for the recipient to expect such messages.
Consent may be inferred where, through an existing business or commercial relationship, there is a reasonable expectation for the recipient to receive ECMs.
- Identity – The message must include clear and accurate information about the person or business that is responsible for sending the ECM.
- Unsubscribe – The message must include a function that allows recipient to opt out from receiving messages from that source, which must be address by the business promptly.
Penalties for non-compliance
There are considerable penalties for contraventions of the Act, which increase between initial and repeat offenders, and for single or multiple breaches. The civil penalties are as follows:
No Prior Record
Corporation – $18,000 or $360,000 for multiple contraventions
Individual – $3,600 or $72,000 for multiple contraventions
Corporation – $90,000 or $1.8 million for multiple contraventions
Individual – $18,000 or $360,000 for multiple contraventions
If you require assistance in relation to the implementation of an online marketing campaign, utilising electronic communication, please contact our experienced team at McLaughlins Lawyers for assistance.
Author: Joshua Rath
Partner: Ian Kennedy