Introduction
In the modern business environment, everyone is subject to sending and receiving commercial messages that advertise their goods and services. It is important to know what the overarching rules are when it comes to sending or receiving such messages. This article will focus on the Spam Act 2003 (Cth) which is the main legislation that governs this area. It will also give an overview of the rules outlined in this Act.
As covered in How to Make Sure Your Business Complies with Anti-Spam Rules, there are 3 key rules to the content and construction of those commercial messages. So those 3 elements are: permission, identification and unsubscribe. However exemptions for factual messages and exempt organisations.
The Australian Communications and Media Authority (ACMA) is a government authority that regulates such commercial messages and deals with the punishments for breaching the Spam Act 2003 (Cth). Therefore, the ACMA plays a key role in promoting responsible industry practice is followed and that laws are complied with by companies. In addition, their Industry Requirements are available here.
So this Act sets up a scheme for regulating commercial email and other types of commercial electronic messages. After that, there are distinctly 5 main parts of the Act.
- Rules about sending commercial electronic messages
- Rules about address-harvesting software & harvested-address lists
- Penalties (civil & injunctions)
- Enforceable undertakings
Rules about sending Commercial Electronic Messages
This Part outlines the three rules mentioned earlier:
- Unsolicited commercial electronic messages are illegal
- Commercial electronic messages must include information about who authorised the message being sent
- These messages must contain a unsubscribe option
Rules about Address-Harvesting Software & Harvested-Address Lists
Address-Harvesting software is specifically designed or marketed to use for searching the internet for electronic addresses and collecting, compiling, capturing or otherwise harvesting those addresses. In addition, Harvested-Address lists are a list, collection or compilation of electronic addresses obtained by the use of an address-harvesting software.
- This software is illegal
- Any list from such software is illegal to use
Penalties (Civil & Injunctions)
The penalties for the breach of this Act’s provisions include:
- Warnings
- Infringement notices
- Injunctions
- Pecuniary penalties (fines imposed and collected by civil courts)
Enforceable Undertakings
This part of the Act outlines that any person may give the ACMA an enforceable undertaking with matters relating to commercial electronic messages or address-harvesting software.
Conclusion
Although there are rules surrounding electronic commercial messages, this area of marketing is growingly rapidly and often the most successful for small businesses. Therefore, it would be advised to reach out to a privacy lawyer to understand what actions you can take with your marketing efforts.
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