Tom Willis is an award-winning marketing leader and Co-founder of Lawpath. Tom’s journey journey includes steering several entrepreneurial projects and addressing the unique challenges faced by small businesses. As the Chief Marketing Officer at Lawpath, Tom has been pivotal in shaping the company’s marketing strategy and business growth.
💡Key Insight
- Australian businesses must comply with the Spam Act 2003 when sending commercial electronic messages such as marketing emails or SMS, which includes obtaining consent, clearly identifying the sender, and providing a simple unsubscribe option on every message.
- Consent can be express or inferred from an existing business relationship, but inferred consent carries greater risk, so many businesses seek explicit opt-in from recipients before sending commercial messages.
- Failure to comply with anti-spam rules can result in enforcement action by the Australian Communications and Media Authority, including fines and infringement notices, making legal compliance essential for digital marketing strategies.
Introduction
Spam rules are important to ensure that businesses do not intrude on people’s privacy as it can offend or harm that individual. In addition, it means that Australia’s electronic communication channels are working effectively. The Australian Communications and Media Authority (ACMA) plays a key role in promoting responsible industry practice is followed and that laws are complied with by companies. The Spam Act 2003 (Cth) is the legislation that governs the areas covered by anti-spam communication channels. An overview of the ACMA obligations are available here – Industry Requirements.
The vital rule for any business to know about anti-spam rules is that commercial electronic messages cannot be sent without consent (or permission). Electronic messages include email, SMS, MMS & instant message (LinkedIn, Instagram, Twitter, Facebook). In addition, it applies when the content has a commercial element. Including offers to supply, provide, advertise or solicit; goods or services, land and a business or investment opportunity. To check whether your marketing will comply with these rules it would be best to get in touch with a privacy lawyer.
Key Rules
There are 3 key parts to the anti-spam rules that every business should be aware of:
1. Permission (Consent)
Recipient must give permission for the message to be sent. There are two types of permission. Express or inferred. Express is when someone agrees directly to receive messages (e.g. subscribing to mailing list). Inferred is when you deduce from an individual’s business (e.g. hold a bank card, bank may contact with related offers). Important to keep a clear record of all instances of where the permission was given.
- Public directory email addresses or numbers have not given consent
2. Identification
Sender’s details must be in the message. As a result they have to be clear, accurate and easy to access. Otherwise, you may be breaching the Spam Act. In addition, the information must be accurate for at least 30 days.
- You need to include registered trading name and contact information (e.g. phone number, address or email address)
3. Unsubscribe
Opt out must be available to stop receiving messages. Instructions on how to stop receiving messages must be clear, obvious and work for at least 30 days after it was sent. In addition, those requests have to be actioned within 5 business days. Also can’t use a premium number for unsubscribing.
Exemptions
There are some commercial messages that exempt from the Spam Act. Thus can be sent without permission and do not require an unsubscribe option. Still required to follow the identification requirement. So there are two types:
- Factual messages – don’t contain any commercial material. E.g. appointment reminder
- Exempt organisations – include registered charities, educational institutions, government bodies or registered political parties
List of penalties issued by the ACMA for breach of laws in recent past – Spam and Telemarketing Enforcement Actions.
Conclusion
If you are looking to start some marketing for your business then it is important to know whether the material that you’ll be sending out to potential customers is in breach of the anti-spam laws. Reach out to a consumer lawyer to make certain that your material is complying with the rules that govern messages sent to consumers.
Unsure where to start? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.
