Call 1800 POD LEGAL   

Recent Action On Unsolicited Electronic Marketing Under The Spam Act

Sending electronic marketing communication direct to consumers is an effective way of getting noticed. This kind of marketing is not new, but as some brands have been learning, its not always welcome.

It turns out that the Australian Communications and Media Authority (ACMA) has taken a particular dislike toward unsolicited marketing material recently. This year the ACMA has issued a number of warnings to business engaging in marketing that is in breach of the Australian Spam Act.

Mr Alex Shehata of Australian Advertising and Marketing Network found himself in breach of the Spam Act when he sent unsolicited marketing email communications for his online printing business. Under the Spam Act, a marketing email may only be sent with the consent of the recipient. The ACMA found that between June and November of 2013, Mr Shehata had sent 69 commercial electronic messages without the consent of the recipient account holders.

The ACMA accepted an enforceable undertaking from Mr Shehata that he will stop sending marketing emails until he adopts a double opt-in process. Essentially, customers must agree to receive Mr Shehata’s advertising and then confirm that agreement when prompted.

Similarly, Penta Group received a formal warning from ACMA when it sent unsolicited marketing emails for its electronics retail business.

How to comply with the Spam Act
The Spam Act regulates commercial communications made via email, SMS, MMS and instant messages. It most probably also covers direct messages sent via social media platforms. Three typical steps you must take to ensure that you comply with the Spam Act are:

1) Obtain consent of the recipient
Consent will be established where:

  • the recipient has ticked a box on a website or form;
  • the recipient has provided their details in a form (such as a competition entry), and agreed to receive electronic updates, etc; or
  • an existing business relationship indicates the recipient is interested in receiving commercial electronic messages for products similar to those sought previously.

2) Identify yourself
The message must clearly identify the sender, including its contact details.

3) Provide a functional unsubscribe facility
The particular breach that Penta Group committed was the failure to offer a functional unsubscribe facility.

All electronic commercial messages must include a facility enabling the recipient to unsubscribe, or ‘opt-out’ of receiving future communications. Common examples include:

  •  A text message;
  •  A reply email; or
  •  A clickable link providing notification to the sender.

One bonus for businesses in complying with the Spam Act, apart from avoiding the scrutiny of the ACMA, is the assurance that the remaining recipients are genuine potential customers.

Ultimately, taking these three steps is simple and effective. Not only will it keep the ACMA at bay, but it may also result in far more successful targeted marketing.