Australian Spam Act
The Australian Spam Act 2003 (the Act) plays a crucial role in regulating the sending of commercial electronic messages, including marketing emails and SMS messages. Compliance is essential for businesses to build trust with their audience, avoid legal issues and maintain a positive reputation.
This article provides our Top 10 tips to help businesses comply with the Act.
What is Spam?
A message is considered spam if it is:
- unsolicited and commercial (offering or advertising products or services or promoting your business);
- sent electronically; and
- originates from Australia.
1. Obtain Consent:
The cornerstone of compliance with the Act is obtaining a person’s consent before sending them marketing emails or SMS messages. Consent can be explicit (directly provided by the recipient) or inferred (based on an existing business relationship). You should implement robust consent mechanisms, such as opt-in forms or checkboxes, clearly explaining the purpose of the communication and seeking permission to send marketing messages.
2. Don’t Spam to get consent:
Express consent is given when someone knows what they are consenting to and actively takes steps to give that consent. Examples include an individual:
- ticking a box next to a statement which asks if they would like to receive marketing messages;
- agreeing over the phone or in person to be added to your marketing list; or
- filling in a webform to receive your newsletters.
Do not seek consent by sending a message asking for consent. This message will itself be spam.
3. Provide Clear Identification:
Every marketing message sent must include clear and accurate identification of the sender. This includes the business’s name and contact details. Providing this information not only ensures compliance with the law but also enhances transparency and credibility, promoting trust among recipients.
4. Include an Unsubscribe Option:
The Act mandates that every marketing message contain a functional and easily accessible unsubscribe option. Recipients should have the ability to opt-out of receiving further communications from the business promptly. It is crucial to action these requests promptly and ensure the removal of unsubscribed recipients from future marketing campaigns.
5. Maintain an Up-to-date Database
The Act mandates that every marketing message contain a functional and ea
Regularly review and update your contact database to ensure accuracy and relevancy. Remove any unsubscribed recipients promptly and keep a record of their opt-out requests. You might want to also consider implementing a double opt-in process to confirm and verify the recipient’s consent, reducing the risk of inadvertently sending messages to unintended recipients.
The Act does not specify timeframes for consent expiry. However, it is best practice to refresh express consent every few years. For inferred consent, if you are relying on an existing business relationship, ensure that relationship still exists.
sily accessible unsubscribe option. Recipients should have the ability to opt-out of receiving further communications from the business promptly. It is crucial to action these requests promptly and ensure the removal of unsubscribed recipients from future marketing campaigns.
6. Respect Time Zones and Frequency
When sending marketing emails or SMS messages, be mindful of time zones and frequency. Avoid sending messages during unsociable hours or in excessive quantities that may be deemed intrusive or annoying to recipients. Respect their preferences and tailor the frequency of communications based on their expectations.
7. Monitor Third-Party Service Providers
If you engage third-party service providers for sending marketing messages on your behalf, ensure they comply with the Australian Spam Act. Conduct due diligence to verify their adherence to the law and seek written assurances from them of compliance. It remains your responsibility to ensure that messages sent on behalf of your company meet the legal requirements.
8. Educate Staff
Like with all compliance matters, train your marketing staff on the requirements of the Act, emphasising the importance of compliance in all marketing communications.
9. Maintain Records
Maintain proper records of consent, opt-out requests, and other relevant information to demonstrate compliance in case of an investigation or complaint. For example, you should keep a record of any consents you receive, noting whether these are express or inferred, what the consent is for, and when the consent was obtained.
10. Use of software
Ensure you do not use address-harvesting software, or use harvested–address lists to send spam.
Complying with the Act is crucial for businesses engaging in marketing emails and SMS messages. By following these essential tips, businesses can ensure they operate within the legal framework, build trust with their customers and maintain a positive brand reputation.
Please reach out to our business lawyers if you have any questions regarding the Act or your marketing campaigns.