Sodium-rich mystery meat? Or commercial electronic message? Figuring out what is and isn’t regulated by the Spam Act can be tricky, and getting it wrong can cost your business big dollars. The Spam Act regulates the sending of ‘commercial electronic messages’ and the first of our three part series on compliance with the Spam Act looks at that definition.

A commercial electronic message is a message sent by email, SMS, MMS or instant message that:

  • offers, promotes or advertises goods, services, land or business or investment opportunities;
  • advertises or promotes a supplier of goods, services, land or business or investment opportunities; or
  • assists a person to dishonestly obtain property, commercial advantage or other gain from another person.

It’s a pretty broad definition and one that businesses should be thinking about as the Australian Communications and Media Authority has the power to impose fines of up to $1.7million. In determining whether a message is commercial, ACMA will look at the content of the message, how it is presented, and any links or contact info which may include commercial content.

Case study – In 2013, GraysOnline sent a non-compliant (see part 3) email to its customers introducing its new website ‘GraysEscape’. Interestingly, Grays made the decision that the message was not promotional (what?) and therefore didn’t need to comply with the Act. They got that decision wrong and copped a $165,000 fine for breaching the Spam Act. Delicious Spam? No.

Messages with an ‘Australian link’ are caught, which includes those that originate in Australia, sent by a business with operations in Australia, or are accessed by a device physically in Australia.

The Spam Act prohibits the sending of ‘unsolicited commercial electronic messages’, so tune in for part 2 to get the rundown on ensuring you have correct consent to send the message. Later, we’ll look at the requirements of the unsubscribe function required under the Act. And yes, this is an electronic commercial message, but not spam.