The Spam Act: How and When You Can Send Marketing Messages

Almost anyone you ask will have, at some point, received an unsolicited email or SMS advertising a product or service. In today’s digital age, it is an effective means of marketing and expanding clientele, only more relevant in a COVID-19 environment.

When sending these messages, it is important businesses are aware of Australia’s anti-spam legislation known as the Spam Act 2003 Cth (‘the Act). To avoid harsh penalties available under the Act, businesses will need to follow requirements and rules set out in the Act.

Rules and requirements

To comply with the Act, businesses must obtain consent. The consent for the message may either be expressly given or implied based on the conduct between the business and recipient.

Consent may be taken to be given in the following circumstances:

  • Recipient ticks a box to receiving marketing
  • Recipient gives verbal consent over the phone
  • Recipient makes their email address or phone number public and does not state they do not wish to receive marketing
  • The public email address is for an individual or office holder and the content of the message directly relates to the role or function of the recipient

There are some exclusions provided for under section 16 of the Act which include messages sent by registered political parties or charities, however, they are limited.

Businesses will also need to make it possible for recipients to unsubscribe to messages in easy to understand language with requests to not incurring a fee. This option must be available for at least 30 days after the message was sent and be actioned within 5 working days.

Additionally, senders will need to ensure they have been clearly identified with contact details available, even where a third party sends the message. For Australian companies, this means including their ABN.

What kind of messages does this apply to?  

The Act prohibits the sending of unsolicited “commercial electronic messages” which means emails, SMS, instant messaging and other mobile phone messaging (such as MMS).

For the rules to apply, the message must meet the “commercial” criteria by either offering goods or services for sale, promoting or advertising a business, business opportunity or investment.

The message will also need to originate in Australia meaning the person sending or authorising the message will need to either be physically in Australia, have central management in Australia or have the message accessible in Australia.

In Summary

Businesses seeking to expand their clientele will need to be careful about sending unsolicited commercial electronic messages.

Failure to comply with requirements under the Act can have serious consequences including the imposition of compensation, pecuniary penalties, compensation, recovery of financial benefits or an injunction. These penalties may reach up to $2.1 million a day for corporate offenders.

Want to know more about Australian Consumer Law? Please don’t hesitate to contact our experienced Newcastle commercial lawyers at Butlers Business Lawyers on (02) 4929 7002 or fill out an enquiry form.