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What Are the Laws Around Email Marketing?

What Are the Laws Around Email Marketing?

Email marketing is one of the most effective marketing strategies around, but strict laws apply. Find out more here.

18th November 2020
Reading Time: 3 minutes

Email marketing is one of the most effective marketing strategies. But how can we make sure we aren’t breaking any spam laws? Let’s have a look at the laws around email marketing.

Email Marketing

Email marketing is a fantastic way to provide your subscribers with value. It can position your business as the leading expert in the field and allow your customer to get to know and trust your brand. Further, email marketing often sees a high conversion rate and increased revenue. Sometimes, however, our efforts to reach our clients can cross a line. It’s important to be aware of the laws around email marketing so that your campaigns aren’t flagged as spam.

Australian Email Marketing Laws

Australian Laws are designed to avoid spam. Spam intrudes on an individuals’ privacy. Additionally, spam can create issues for the electronic communication channels in Australia. The Spam Act 2003 (Cth) (The Spam Act) is the legislation which governs email marketing.

There are 3 key rules which email marketers need to be aware of.

  1. Consent
  2. Identification
  3. Unsubscribe options

You can read more about the Spam Act here.

1. Consent

If you want to send your clients or customers emails, you first need to get their permission. Consent is either express or inferred.

Express consent is given when a recipient has opted-in to receiving emails from your business.

For example, say you have a free resource on your website. Customers can download the resource by entering their email and subscribing to your newsletter. A customer gives express consent when they enter their email and click ‘subscribe’.

To establish inferred consent, the relationship between you and the recipient will be assessed.

For example, it is inferred that a customer who holds a membership with a gym would be interested in offers related to the gym.

It is important for you to always keep a record of how and when you obtained consent from those on your email list.

2. Identification

The email must contain the details of the sender. Your recipients must be able to contact you or your business. You should include the following in every email:

  • Registered trading name
  • contact information
    • phone number,
    • address, or
    • email address

Additionally, this information should be clear, easy to access and accurate for at least 30 days. Otherwise, you may be in breach of the Spam Act.

3. Unsubscribe Options

Your recipients must be able to opt-out. The must be a clear way of unsubscribing from the emails.

For example there could be an unsubscribe link at the bottom of the email. Or similarly, clear instructions directing them to respond to the email requesting to unsubscribe.

It’s always sad to see subscribers loose interest, but if you receive unsubscribe requests, these need to be honoured within 5 business days.

Are There Any Exceptions?

There are some specific instances where your emails are partially exempt from these laws. However, even in these scenarios, you need to still meet the identification requirement.

  1. Factual emails. Emails which do not contain commercial material and are purely factual do not need to meet the consent and unsubscribe requirements. An example might be an email appointment reminder or a quote.
  2. Exempt bodies. Some organisations are exempt from the Spam Act. These may include: government bodies, registered charities, educational institutions, or registered political parties

What Happens if My Email Marketing Breaches The Spam Act?

The Australian Communications and Media Authority (ACMA) monitors and enforces the Spam Act.

If your email marketing breaches the Spam Act, the ACMA may

  • issue formal warnings
  • issue infringement notices
  • take action in the Federal Court
  • accept undertakings

Repeat corporate offenders may face penalties of up to $2.22 million a day.

Recently, a big corporate company received an infringement notice for $1,003,800.00. This was the the largest ever issued by the ACMA.

Conclusion

If you’re unsure as to whether your email marketing strategy is compliant with the Spam Act,  you can reach out to a consumer lawyer here.

Don’t know 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.

Author
Majella Dunn

Majella is a Legal Tech Intern at Lawpath. Majella has a Bachelor of Laws and a Bachelor of Arts at Macquarie University. With a keen interest in IT & IP law, Majella is passionate about integrating technology and the law, making legals more affordable and accessible to start-up businesses.