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Do You Want Spam With That?

Why McDonalds fell foul of the Spam Act, and how you can avoid doing the same…
Imagine this: you walk into a fast food restaurant and buy a burger. The man behind the counter tells you that you can get fries with your order if you give him the address of a friend.
You like fries, so you give him an address of someone you figure won’t mind and will probably never know that you’ve just parted with their personal information to a complete and utter stranger.
You don’t think much of it until your friend – who you completely forgot is a vegetarian – tells you the strange tale of a delivery guy turning up on their doorstep with a lukewarm burger they didn’t order and would never eat…How on earth, your friend wonders, did they get their street address?
Of course, you’d never hand over the address of a friend to a stranger – the promise of fries or not – without asking them first. And surely a fast food chain wouldn’t just pitch up with a wilting burger to just any old address?
Not in real life, at least.
But in our online life, we and brands do just that every day. As a friend giving away an email address or even mobile number borders on taking liberties, even if we genuinely believe our friend would be interested in the referred product or service.
But for brands or businesses that assume our referral will be well met by the third party, it doesn’t just border on taking liberties, it crosses over into breaking the law. Particularly, the Spam Act 2003, which governs spam in Australia.
This fact is something even a mega-brand such as McDonalds had to be reminded of recently by the Australian Communications and Media Authority (ACMA) which issued a formal warning to the chain over a ‘send to friends’ function on its Happy Meal website.
When it comes to spam – or fries or burgers for that matter – the law doesn’t really care if an individual feels they have the right to hand over a friend’s details. What it cares about is whether the brand or business involved has the third party’s consent to send an electronic communication at all.
To know that, the third party would have to expressly agree to having a communication sent to them, which they can’t as their relationship is with the friend who referred them in the first place.
It’s a bit like saying your friend is automatically a friend of Ronald MacDonald because you are, even if they have a fear of clowns and are fundamentally opposed to fatty food. In short, it isn’t for you to say, or for Ronald to assume, your friend is his as well.
And while, you may lose a friend, Ronald risks losing hundreds of thousands of dollars in fines for spamming unsuspecting mates of his mates.
Of course, ‘friend get friend’ e-marketing is an attractive option for small businesses and brands alike. After all, word of mouth has been the corner stone of commerce ever since Og told Zog a nice Neanderthal down the road did a very good wheel.
But online, the Spam Act is very clear that any business sending commercial messages via email, SMS, MMS or an instant messaging service must do three things:
1. Obtain the recipient’s consent
2. Identify itself as the sender
3. Provide a functional unsubscribe facility
The first point is the sticking point as it essentially dictates that a business must have a one to one relationship with the recipient, not some vague connection from a mutual ‘friend’.
As ACMA Chairman Chris Chapman said after slapping McDonald’s on the wrists: “This case should alert businesses that they must think carefully before using ‘friend get friend’ marketing.”
That careful thinking includes not blindly subscribing to online marketing services that claim they can get you hundreds of more customers through ‘friend get friend’ tactics. I recently saw one, which proudly announced ‘spam free!’ but a quick eye over the finer print showed what they actually meant is that they wouldn’t send YOU any spam. I doubt they had the same concern for potential customers…
Thinking carefully should also include not just calling in the lawyers when ACMA is knocking at the door and Ronald is fleeing to Spain. Much as editors get major stories cleared for publication by legal, businesses need to get used to running marketing campaigns past a lawyer.
It needn’t be a costly exercise, and it certainly won’t be as costly as contravening the Spam Act might be. That, as ACMA itself somewhat ominously warns, can be ‘an expensive mistake to make…’