How the Spam Act could affect your email marketing

Spam – unsolicited bulk electronic messaging, also known as junk mail – is used for many purposes including advertising and marketing. Here, lawyer Lachlan McKnight explains how laws against spam could affect your email marketing.

Spam – unsolicited bulk electronic messaging, also known as junk mail – is used for many purposes including advertising and marketing. Here, lawyer Lachlan McKnight explains how laws against spam could affect your email marketing.

The most widely used form of spam is email spam, although any form of electronic messaging can be used to spam you. 

In Australia, spam is regulated by the Spam Act 2003 (Cth). It is illegal for a person or organisation to send emails in breach of the Spam Act. The Spam Act applies to any ‘commercial’ electronic messages that:

  • Offers, advertises or promotes, amongst other things, investment opportunities and the supply of goods and/or services;
  • Advertises or promotes a supplier of, amongst other things, investment opportunities, goods and/or services;
  • Assists a person to dishonestly obtain property, commercial advantage or other gain from another person;
  • Originates, was commissioned or sent to an email address accessed in Australia.

This includes individual emails or generic emails sent from a database, whether they are sent by individuals or organisations.

What does this mean for email marketing?
The Spam Act affects email marketing in a variety of ways.  The main requirements for emails under the Spam Act are:

  • Consent;
  • The email must contain a functional unsubscribe function;
  • The sender must be accurately identified.

Consent: The recipient of a commercial email must have consented to receiving from the sender emails of the nature of the email sent by the sender. This consent can either be express or inferred from conduct having regard to the business/other relationship of the sender and recipient. If you are sending emails to customers or visitors to your website, you should advise them of this in your website terms and conditions.

Functional unsubscribe function: Every email to which the Spam Act applies must contain a functional and legitimate unsubscribe function, so that it is easy for a recipient to unsubscribe from an email list. An unsubscribe function is a statement to the effect that the recipient may use an address specified in the email to notify the sender that they do not want to receive any further emails from the sender. The unsubscribe function must:

  • Be worded in a clear and conspicuous way;
  • Be reasonably likely to remain valid for at least 30 days;
  • Allow the recipient to send an unsubscribe message to the sender or any person who authorised the sender to send the email to the recipient;
  • Be able to be accessed at low or no cost to the recipient.

If a recipient sends an unsubscribe message withdrawing their consent to receiving emails from the sender, then the sender must within five business days remove the recipient from their email list (or otherwise take steps to ensure that the recipient receives no further emails form the sender). For example, an unsubscribe message could say: ‘If you no longer want to receive these messages from us, please click the "unsubscribe" button below or reply to this email with the word "unsubscribe" in the subject line.'

Sender must be accurately identified: The sender of the email must be clearly and accurately identified. In addition, the email must advise the recipient how to contact the sender by giving details, which must be reasonably likely to remain valid for at least 30 days.

Are there exceptions? Yes. The most important exception applies to emails sent by certain government bodies, charities, religious organisations, registered political parties and educational institutions. These organisations can send emails without the consent of the recipient and without complying with the unsubscribe requirements of the Spam Act if, and only if, the emails relate to goods or services supplied by the organisation that authorised the sending of the message. However, the organisation must still be accurately identified so the recipient can contact the organisation.

Lachlan McKnight is CEO of Legal Vision.

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