No, we’re not going to give you recipes for the popular spicy canned ham product (although, you may (or may not) be interested to know that SPAM was founded in 1937 and over 7 billion cans have been sold since then!).

Spam has another, more relevant meaning in the world of marketing and advertising law.  In this update we go “back to basics” on spam.

So tell me… what is spam?

In Australia, electronic messages (email, SMS or MMS) can be sent to consumers to promote goods or services, but the sender must first have consent from the recipients.  ‘Spam’ is the term used when an electronic message has been sent without consent.  The sending of electronic messages is regulated in Australia under the Spam Act 2003 and enforced by the Australian Communications and Media Authority (ACMA).

How can I make sure I comply with the Spam Act?

There are three key things to remember:

  1. make sure you have consent from the intended recipients before sending the electronic message;
  2. include the sender’s details in the electronic message; and
  3. ensure the electronic message contains a functional unsubscribe facility.

If you don’t follow these three steps, the electronic message won’t comply with the Spam Act.

Well, what happens if an electronic message doesn’t comply with the Spam Act?

There is a chance that consumers who receive spam could submit complaints to the ACMA, which could result in the sender being penalised.  The worst offenders have been hit with multi-million dollar penalties.  Another thing to keep in mind is the risk of bad press and/or PR issues for the sender - we know that this is something every company wishes to avoid!

Can I use entrants’ details from a trade promotion to send electronic messages?

In short, yes – if you set up your promotion in the right way.  A promoter of a trade promotion may wish to retain entrants’ personal information and add these details to a mailing list to send ongoing electronic messages.  This is ok so long as the promoter ensures they’ve obtained consent from each of the entrants before sending any electronic messages.  The promoter also needs to comply with the other aspects of the Spam Act.  There are a couple of ways to obtain consent and we can let you know your options if it’s relevant to your promotion.

Are promotions with a “refer-a-friend” mechanic ok?

While in the past it was quite common to see companies running trade promotions with a “refer-a-friend” mechanic, these kinds of trade promotions often don’t comply with the Spam Act.  Why, you ask?  Well, it’s because at no point has the promoter received direct consent from the referred friend to send that person electronic correspondence.  Back in 2012, McDonalds received a formal warning from the ACMA for breaching the Spam Act due to a “send to friends” facility they had on their website.  The facility meant that electronic messages were being sent to friends of users of the facility without McDonalds having direct consent.  Not only that, the messages didn’t have a functional unsubscribe facility.

It’s clear that these type of promotions are on the ACMA’s radar and they will target companies who aren’t complying with the Spam Act, so proceed with caution!  If you have a specific refer-a friend mechanic in mind, please get in touch and we’d be happy to give you our preliminary thoughts on whether that type of activity will be possible (and legal!).