Whether it is a person receiving unsolicited emails or a business considering email marketing, it is important to understand the situations in which an email could become unsolicited electronic junk mail (i.e. spam). Getting it wrong affects businesses and individuals to varying degrees. For recipients: aside from lost time and productivity in dealing with electronic junk mail, some businesses are forced to purchase blocking and filtering software to deal with the issue. For senders: it can be an expensive exercise if you’re prosecuted for breaking the law.
How is “spam” defined and treated at law?
What should you consider if you are planning to market by way of email?
What can you do to deal with the annoyance and frustration of spam?
The Commonwealth Spam Act 2003 regulates the sending of certain “commercial electronic messages” (“Messages”) with an Australian link. “Spam” is not defined in the Act.
Instead, the Act regulates “unsolicited Messages”, which are messages sent using an internet carriage service to an electronic address. Whilst email, instant messaging, SMS or MMS are included, faxes are excluded as Messages. Under the Act, Messages must comply with the following 3 basic rules:
- unless the recipient consents, unsolicited Messages must not be sent;
- all Messages must include accurate information about the sender; and
- all Messages must contain an unsubscribe facility.
Any Message that breaks one of these rules breaks the law.
Consent can either be express or reasonably implied from conduct or the relationship between the sender and the recipient. However, consent cannot be inferred simply because the receiver has made public its email address. (The sender of the message bears the burden of showing that consent was provided.)
Accurate Sender Information
The requirement for accurate sender information is to limit the number of senders of unsolicited Messages who intentionally disguise the source of the message by using false addresses. (Their intent is to induce people to read the message and to not be able to identify the true sender.)
There must be a simple and functioning unsubscribe facility so that recipients can opt out of future communications.
Compliance & Consequences
For senders: if you’re planning an email marketing campaign, ensure that you’re in compliance with the Spam Act. Given the potential consequences described below, consider getting a lawyer to conduct a review on your proposed marketing campaign to ensure compliance with the law.
For recipients: if you’re being inundated or troubled by spam, you should never respond to spam. If you’re unable to unsubscribe and you don’t have a spam filter installed on your computer, then have one installed. In any event, contact the Australian Communications and Media Authority (ACMA), the regulatory authority responsible for enforcing the law in this regard. (A person who breaks the law may be subject to an injunction application and penalties of up to $1,100,000 (for repeat offenders).
Most recently, ACMA fined Optus Networks Pty Ltd $110,000 for failing to include the required “accurate sender information” in its 20,000 SMS messages to consumers, as Optus did not identify itself or its product by name. However, ACMA is not just interested in the big end of town; in 2008 ACMA issued Best Buys Australia Pty Ltd with a $4,400 infringement notice for sending commercial messages without the consent of the recipient.
If ACMA are unable to resolve the matter for you, then consider engaging a lawyer to send a letter of demand and, if necessary, take further legal action.
What to do next: If you need help in dealing with the legal aspects of marketing material sent via email, call Rob Montes on 3354 8888.
The information provided by Kafrouni Lawyers is intended to provide general information and is not legal advice or a substitute for it. The parties to an agreement should always consult their own legal advisors to discuss their particular circumstances. Kafrouni Lawyers makes no warranties or representations regarding the information and exclude any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Lawyers.
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