One of my tasks as Practice Manager is to monitor and review incoming emails addressed to the “generic” business inbox and every now and then I find an email that really distresses me.  In fact just last week I opened one such email.

What was the cause of my distress you might ask?  Well there in front of me, listed beside the letters “CC” was a ready-made potential new client database containing just over 100 recipient email addresses.

The other source of my distress was the fact that this direct marketing email was sent without first requesting my consent and it did not include any instructions on how to effectively unsubscribe.

As I was busily typing my email in reply in an attempt to unsubscribe,  I realised that there might be other small business owners out there, keen to promote a sale of their latest product but unwittingly about to commit the same or similar breaches. This article is therefore written to provide some helpful information to you so you can avoid sending SPAM.

The Spam Act 2003 (the Spam Act)

The Spam Act was created to provide consumers with protection and remedies against the senders of unsolicited commercial electronic messages. Electronic messages include emails; instant messaging; SMS and other mobile phone messaging and for it to be commercial, the message needs to be offering or promoting a commercial transaction (such as a Sale or Auction) or directing the recipient to a location where a commercial transaction can take place.

If part of your business marketing strategy involves sending promotional emails or SMS/MMS/IMS text messages it would be prudent to follow these 3 key steps:

1. Consent – Only send commercial electronic messages with the recipient’s consent.  The consent can be either express (where you have a direct indication from the recipient that it is okay to send the message or messages of that nature)  or implied (where as a result of the conduct and the business or other relationship with the recipient you have the recipient’s inferred consent).

2. Identification – Provide clear and accurate information about who is responsible for sending the commercial electronic message and how they may be contacted. (Note that the sender is generally the organisation who has authorised the message and not the person who actually sends the message.)

3. Unsubscribe – Include a functional unsubscribe facility in the commercial electronic message to enable the recipient to effectively unsubscribe from any future messages. Ensure that any unsubscribe requests are actioned within five days of the date the recipient sent an electronic request to unsubscribe, or within five days of receiving  a request to unsubscribe by post or other means.

There are some forms of messages that are not covered by the Spam Act.  These include:

• Non-electronic messages such as ordinary mail, paper flyers etc;

• Voice to voice telemarketing;

• The majority of “pop-up” windows on websites; and

• Electronic messages that are not commercial in nature.

It pays to be careful before you send out your next commercial electronic message.  If you breach the Spam Act and you get caught, the fines are up to $1.7 million for corporations and $340,000 for individuals.  Lastly, whether you send just one message or many – it makes no difference. The Spam Act makes no reference to bulk messaging so a single unsolicited electronic message can still be spam.

The Australian Privacy Principles

In one of our earlier BLOGS released last month entitled “New Privacy Laws commence on 12 March 2014”   we provided a quick refresher on what the new privacy laws cover.

I don’t intend to repeat everything here but if in the context of providing goods and services you collect and use a person’s private information (such as their name and contact details including email and residential address) you should seek their consent to use that information for another secondary purpose (such as ongoing direct marketing).  Also a bit like the Spam Act, you should also have an ‘opt out’ option and identify who you are in any direct marketing material.

Lastly even where you use private information for the purpose that you have collected it and have the consent of each recipient to send electronic messages, make sure you place appropriate protections around the inadvertent publication of that private information. Choose the “BCC” feature in the email software (instead of the “CC” feature) when you send your messages out to ensure that the recipient email addresses remain private.

For further information, please contact the author.

This article is posted in Adelaide, South Australia by Tri-meridian Corporate & Commercial Law and is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. We do not accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your professional adviser.