Readers would be familiar with the contents of the SPAM Act. Essentially, the Act requires that an electronic communication must not be sent without the consent of the recipient, it must contain clear and accurate information about the person or organisation that authorised the sending of the message, and it must contain an “opt out” or “unsubscribe” provision so the recipient can choose not to receive emails in the future.
In recent times there have been two quite significant penalties imposed for organisations that are failed to take the appropriate steps to ensure that they complied with the Act.
A: Sending emails on behalf of others.
In May this year, J and L Mainwaring Pty Ltd paid $21,600 following the issue of an infringement notice from the Australian Communications and Media Authority (ACMA). The ACMA found that the company had sent marketing emails on behalf of other businesses, but was not able to show that the recipients had consented to receive those messages.
The messages also breached the Act in that they did not have the name or contact details of the business that authorised the sending of the message.
The fine applied notwithstanding that the party who was ultimately to benefit from the issue of the direct marketing material, was not the party fined.
This penalty is clear evidence that you need to do more than just assume that a person who provides you with a database of information has done so with the consent of the persons in that database. Once you are sure that consent has been received you still need to comply with the other requirements of the legislation so as not to be the subject of an Acma prosecution
B: Assuming the Act doesn’t apply
In April 2015, Grey’s online shopping websites had made a conscious decision to issue an email based on their belief that the email was not “promotional”. The ACMA found that the emails were emails to which the Act applied. That being the case the messages required the mandatory opt out facility. That was not included. It was further found that people who had previously withdrawn their consent had been issued with the email. Such conduct was found to be a material breach of the legislation. This resulted in a much higher fine than J and L Mainwaring Pty Ltd had paid.
Again the lesson is to ensure that you make an accurate assessment as to whether or not an email will be the subject of the SPAM Act. If in doubt seek our professional assistance in making that determination.