Spam Laws: When Emails Become Spam

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?

Legislation

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 to an electronic address, such as by email or SMS.  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:

1. unless the recipient consents, unsolicited Messages must not be sent;
2. all Messages must include accurate information about the sender; and
3. all Messages must contain an unsubscribe facility.

Any Message that breaks one of these rules breaks the law.

Consent

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.)

Unsubscribe Facility

There must be a simple and functioning unsubscribe facility so that recipients can opt out of future communications. An unsubscribe request must be honoured within 5 working days.

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.  ACMA can issue infringement notices, accept enforceable undertakings and seek court-ordered penalties, and the penalties can be large: in 2024 the Commonwealth Bank paid a $7.5 million penalty after sending more than 170 million marketing messages without a way to unsubscribe, and 34.8 million to people who had not consented or had withdrawn their consent.

The Spam Act does not give recipients a right to sue the sender; a complaint to ACMA is the remedy.

Joe Kafrouni, Legal Practitioner Director, Kafrouni Law

Disclaimer

The information provided by Kafrouni Law 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 Law makes no warranties or representations regarding the information and excludes any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Law.

Liability limited by a scheme approved under professional standards legislation.