TPG Internet Pty Limited (TPG) has been fined $360,000 by the Australian Communications and Media Authority for not unsubscribing customers who requested to stop receiving marketing messages and therefore breaching the Spam Act 2003 (Cth) (the Act).

ACMA chair Nerida O’Loughlin said TPG’s fine serves as a reminder to anyone who conducts email or SMS marketing to make sure the systems they have for maintaining their marketing lists are working well and comply with the Act.

The Spam Act

Generally speaking, for any business which uses a service whereby an electronic message is sent by the business to an individual, it is necessary to consider whether or not the message constitutes a “commercial electronic message” (being an electronic message which, having regard to the message’s content and presentation, offers, advertises or promotes goods, services, land, or business and investment opportunities) for the purposes of the Act.

Under the Act it is illegal to send, or cause to be sent, unsolicited commercial electronic messages unless one of the exemptions under the Act apply.

To avoid being ‘spam’, all ‘commercial electronic messages’ must:

  1. be sent, or caused to be sent, with the consent of the recipient;
  2. identify the sender; and
  3. include a functional unsubscribe mechanism.

Consent can be express (for example, signing up to a mailing list), or inferred (such as through an existing business relationship) and must be able to be withdrawn at any time.

The TPG Investigation

The ACMA investigation followed complaints from consumers that they had unsubscribed from receiving commercial electronic messages from TPG but continued to receive such messages.

The ACMA identified that TPG’s systems were not properly processing unsubscribe requests during April 2017, highlighting that consent alone is insufficient for the purposes of ensuring that a commercial electronic message is not ‘spam’. This meant that TPG contravened subsection 16(1) of the Act by sending SMS commercial electronic messages to consumers who had withdrawn their consent by unsubscribing.

According to the ACMA, it decided to issue an infringement notice to TPG rather than commencing proceedings in the Federal Court as TPG co-operated with the ACMA during the investigation, admitted the breach, and has taken steps to remedy the causes of the breaches.