So is it spam? Obligations under the Spam Act 2003

Raymond Frangi

In the current digital and costs conscious era, many businesses rely on email or SMS to offer or promote goods or services to existing and potential customers. Businesses that rely on email or SMS for marketing purposes need to be aware of, and comply with the requirements under the Spam Act 2003 (Cth) (‘the Act’) prior to sending commercial electronic messages to existing and potential customers.

‘Commercial Electronic Messages’

The Act regulates the way that Australian businesses are able to send commercial electronic messages.
The term ‘electronic messages’ for the purposes of the Act includes emails, SMS, instant messaging and other mobile phone messaging (such as MMS), but does not include messages sent by way of a ‘voice call’ made using a standard telephone service.

The Act only applies to the sending of electronic messages that are commercial in nature. The term ‘commercial’ for the purposes of the Act refers to where the purpose, or one more of the purposes, of the electronic message is to offer, advertise or promote goods or services, land or business or investment opportunities, or to advertise or promote a supplier or prospective supplier of goods or services.1

Exemption for ‘Designated Commercial Electronic Messages’

The Act does not apply to messages that are determined to be a ‘designated commercial electronic message’.2  In relation to commercial organisations, designated commercial electronic messages include messages that consist of no more than factual information, (with or without directly related comment) and any or all of the following additional information:

Examples of such messages include newsletters or other similar messages regarding industry news or market developments provided by businesses. Whilst such electronic messages are able to be sent, care should be taken to ensure that such messages dot not contain any direct or indirect form of commercial solicitation.

General Position

The general position under the Act is that a commercial electronic message containing an ‘Australian link’,3 is prohibited from being sent, if it:

The Act does not distinguish between electronic messages that are sent in bulk or sent individually. In this regard, the prohibition applies to the sending of single electronic messages as much as to the sending of electronic messages in bulk.

Consent

The consent required to send commercial electronic messages under the Act may be express or inferred consent.

Express Consent

Whilst ‘express consent’ is not definite in the Act, the term is effectively understood to be an individual taking active steps to specify their consent, such as:

Inferred Consent

In the absence of express consent, consent may be inferred where it is clear that there is a reasonable expectation by the recipient to receive an electronic commercial message from the sender.

A sender may reasonably infer that a recipient has consented to receiving a electronic commercial message after carefully considering the nature of the electronic commercial message, its relevance to the recipient, and its relationship with recipient.

Examples of where consent may be inferred under the Act include:

Penalties

Contraventions of the Act carry with them tough enforcement measures and significant civil penalties. The maximum penalty able to be levied by the Federal Court on an initial offender is $68,000 per offence for an individual, and $340,000 per day for a body corporate. For repeat offenders, the maximum penalty increases to $340,000 per day for an individual and $1.7 million per day for a body corporate.

Whilst the Federal Court is able to deal with a contravention under the Act, The Australian Communications and Media Authority (ACMA) oversees the enforcement of the Act and may issue formal warnings and infringement notices for contraventions of the Spam Act.

Steps for Complying with the Spam Act

If your business plans to send commercial electronic messages for marketing purposes, the following steps should be considered to meet the requirements of the Act:

For more information on the Spam Act, please contact our experienced commercial lawyer:

Raymond Frangi, Associate
Phone: +61 2 9895 9218
Email:
rfrangi@colemangreig.com.au

1. For more information on what is a ‘commercial electronic message’, see ACMA Fact Sheet  <http://www.acma.gov.au/Industry/Marketers/Anti-Spam/Ensuring-you-dont-spam/key-elements-of-the-spam-act-ensuring-you-dont-spam-i-acma>

2. For more information on ‘ see designated commercial electronic message’  Schedule 1 of the Spam Act.

3. ‘Australian Link’ includes if the message originates in Australia, or if the individual or organisation is located in Australia, or the recipient is located in Australia. For more information on ‘Australian link’ see section 7 of the Spam Act.