Have you ever found yourself wondering, one long, perfect, lazy afternoon when you had nothing better to do, about spam emails and how the heck that whole thing worked legally for the companies sending them out? No? Well that’s just weird. You aren’t normal. Just kidding! It’s an absurd thought to spend your casual time thinking about, but if you’re a business owner with email and text marketing and advertising on your mind then it’s time you started to think about it! Sound like fun!? I mean, who doesn’t want to spend a lazy afternoon learning about all things spam and law? Weeeee! Read on for our 5 FAQs about advertising by email or any commercial electronic message.
First up, the Spam Act 2003 (Cth)! This bad boy is an Act passed by the Australian Parliament back in 2003 when email was super cool, to regulate commercial email and other kinds of commercial electronic messages like text messages. It’s an Australia wide law that prohibits the sending of “unsolicited commercial electronic messages”. With me so far?
What Is a “Commercial Electronic Message”, Exactly?
Good question, law learner! Let’s get clear on what, exactly, a ‘commercial electronic message’ is. The Spam Act sets out what constitutes a commercial electronic message but to summarise, it is a message that can be sent by email, SMS, MMS. social media or instant message that offers, promotes the supply of goods or services, provides business or investment opportunities, it’s not an exhaustive list, the Spam Act sets things out in a bit more detail.
If you’re new to the world of spam laws and commercial regulations, let me first fill you in on the Australian Communications and Media Authority and what they do, exactly. Also known as the ACMA, they’re “the government body responsible for the regulation of broadcasting, telecommunications, radiocommunications and online industries.” You can check out more details about how the ACMA works here.
I know you’re super fascinated by this Spam Act stuff so let’s keep going. To figure out if a message is considered commercial, the ACMA explores the message content, how it’s presented as well as any contact information or links that have commercial content.So if the message is linking back to your website selling the hottest new BBQ aprons on the market, that’d be construed as a commercial link.
What Are the Spam Act Rules You Must Follow to Stay Legal?
Though all of the legal jargon that comes along with any law and Act passed through Parliament can be kinda scary and super overwhelming, there are ways to break them down so they’re less daunting and your brain won’t try to run away. For the Spam Act, there really are three key rules that you need to follow closely and carefully.
- Permission/Consent: The sender must have permission/consent to send the message from the recipient or owner of the account where the message is being sent. Permission can be express (like signing up to your mailing list) or inferred (perhaps you have a business relationship with the individual and you’re continuously in contact discussing ongoing business news and events). Ultimately the ACMA decides if permission is indeed, inferred, so here it can get sticky. Don’t fall into any legal grey areas as its your job to prove you have consent, best practice is to get express consent.
- Include Sender Information: The message being sent must include the name and contact details of the person or business that is sending the message.
- Option to Unsubscribe: There must always be an option to unsubscribe from or opt out of the messages being sent, something simple like (emails) “We would be sad to see you go but if you don’t want to receive any more messages, just click “unsubscribe” below” for SMS a notification in a text message to reply “STOP” or “opt-out”
Outside of these three rules that must be followed, there is a little more nitty gritty like not being able to use addresses that have been ‘harvested’ by a computer program or service. That isn’t proper permission. You also cannot have a partner in crime to try and get around the rules. Someone sending messages on your behalf to individuals who haven’t given consent still implicates you and your business; you’re still breaking the law. Make sure you’re on track with this SPAM flow chart.
What If I Used Someone Outside Of Australia To Send My Messages?
Tough stuff, friend. Like we said above, reeling in someone else to send messages on your behalf is a big no no. Even if that someone lives in Canada. Or Turkey. Or the North Pole. It’s still your company and your message being sent out. So you need to abide by the rules of the Spam Act.
Are There Any Exemptions to Spam Rules?
There are a couple of situations where spam rules won’t apply.
- Designated Commercial Messages: The long and the short of this is that there are certain organizations that are exempt from these laws such as registered political parties, charities, government bodies and places of education as long as the message is to current or past students. If any of these organizations send an email about their services they don’t need permission to do so from the recipient.
- Factual Messages: These messages don’t have any commercial or advertising information in them. So you can’t be telling the recipient about your aerobics fashion releases for the summer season. What you can put in the email is a reminder for their meeting with you for next Wednesday. Facts. No selling. Got it? Good.
What Are the Repercussions For Breaking The Spam Rules?
If you decide you like to live on the edge and you go and break any of these rules, the ACMA has some steps they take to keep you from repeating your mistake. Ominous, no? Look, you’re not going to be tossed in the slammer anytime soon, but you can get more than just a formal warning and a slap on the wrist. If you receive an infringement notice it can be hefty, sometimes tens of thousands of dollars. If you’re a repeat offender the cost is even more. In my humble opinion, sending an email to sell some new aerobics clothes (or whatever your wares may be) is definitely not worth that much of a risk!
So before you begin your marketing campaign, be sure that any commercial messages you send out are on the right side of the Spam Act!
If you’re still unclear about the Spam Act and commercial electronic messages, don’t hesitate to give us a shout and book in a free 15-minute consult. We’re here for you and we’re ready to geek out on law!
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FOUNDD LEGAL articles are intended to provide commentary and general information only and presented in an informal style. Though we like to keep it real, please don’t rely upon our posts as legal advice. If there is something in one of our articles that speaks to you, reach out for some formal and up to the minute legal advice to properly address and discuss your queries and concerns. We’re here for you!