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Aug 24, 2010 Bookmark and Share

How not to be a spammer. Get acquainted with the Aussie Spam Act of 2003

What have Optus, Virgin Mobile, MYOB and CommSec all got it common? They’ve all been busted under the Australian Spam Act of 2003.

Here is a summary of their misdemeanours. Click on the company names to go to press releases with the full stories.

Do you ever send out e-newsletters or bulk emails, and want to avoid getting on the wrong side of the Spam Act of 2003? If so, read on!

Company How they breached the Spam Act 2003 Fine
Optus Inaccurate sender information $110,000
Virgin Sending emails to customers who had previously opted out of receiving any more emails $22,000
MYOB As above $0
CommSec As above $55,000

The Australian Communications and Media Authority (ACMA) is responsible for (amongst other things) enforcing the Spam Act 2003, and “actively works to fight spam in Australia”.

Under the Spam Act 2003 it is illegal to send, or cause to be sent, unsolicited commercial electronic messages. The Act covers email, instant messaging, SMS and MMS (text and image-based mobile phone messaging) of a commercial nature. It does not cover faxes, internet pop-ups or voice telemarketing.

Email marketing is, undeniably, one of the most cost effective methods for getting your message out to thousands of people - whether they like it or not! Many businesses large and small are therefore tempted to use - and quite possibly abuse (accidentally or otherwise) - this opportunity, especially when times are tough and the pressure to attempt to win more customers and more sales is intense. Or perhaps you’re just trying to launch a brand new business and urgently want to kick-start it by way of a mass-mailout to a (hopefully) target audience.

Side note: irrespective of the laws of your land, don’t forget that most people really, really dislike receiving unsolicited email messages. So even if your mass-mailout complies with your local laws, there’s a risk that you could achieve the exact opposite of what you ‘innocently’ set out to achieve, i.e. you create more negative feelings towards your business than positive ones.

Last time we checked, ignorance is not a defence in the eyes of the law. So it pays for everyone engaged in email marketing (both users and suppliers of bulk email systems and software) to get educated about (at least) the key components of the Spam Act 2003. And here they are:

Commercial electronic messages must generally have the following features:

  1. Consent
    It must be sent with the recipient’s consent. The recipient may give express consent, or consent may be inferred from their conduct and ‘existing business or other relationships’;
  2. Identify
    It must contain clear and accurate information about the person or organisation that authorised the sending of the message; and
  3. Unsubscribe
    It must contain a functional ‘unsubscribe’ facility to allow the recipient to opt out from receiving message from that source in the future.

Perhaps the feature with the biggest “grey area” is that of Consent, and in particular with regard to what “inferred consent” means. The ACMA web page on the subject describes it thus:

Under the Spam Act, you can only infer consent through conspicuous publication if:

  • the electronic address is published ‘conspicuously’ – that is, it is accessible to the public, or a section of the public (for example, it appears on a website or in a telephone directory or brochure)
  • the address is not accompanied by a statement that commercial messages are not wanted
  • the subject matter of your message is directly related to the principal role or function of the recipient (electronic account holder).

You might be able to determine the person's role from the context in which their address is published, from the address itself (e.g. accounts@business.com) or from accompanying information (e.g. 'To contact our accounts department, email: numbers@business.com'). If you are not certain that your message relates directly to the role of the intended recipient, and you send it anyway, you may breach the Spam Act.

With conspicuous publication, there must be a strong link between what you are promoting and the recipient's role or line of business. You cannot infer someone’s consent just because you believe your product would benefit them.

Examples

  • If you sell IT software to businesses, this does not mean you can send promotional emails to any business with a published email address. However, if a business conspicuously publishes the email address of their IT department, you may be able to infer that account holder's consent, as your message is directly related to their role, function and line of business: IT.
  • If your business sells washers for taps, you cannot send commercial emails to all businesses with conspicuously published email addresses on the assumption that they all need washers in their taps. However, you could send your promotional emails to plumbing supplies stores.

You may have noticed earlier that both user and suppliers of bulk email systems and software need to understand their responsibilities under the Spam Act 2003. Itomic is both a user and supplier in this regard. In order to better formulate our own Terms and Conditions surrounding the use of the systems and software that we supply to our clients, we’ve recently been in communication with ACMA and they’ve confirmed that, potentially, suppliers can be liable under the Act for breaches of it by their clients.

OK, now we’re all up to speed on the Aussie Spam Act of 2003, let’s end on a high note and go back to where it all started. Click here for Monty Python’s Spam Sketch on Youtube!

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