Beware the Spam Act!

The Spam Act prohibits the sending of commercial electronic messages without the consent of the receiver.

There are 3 main elements that must be satisfied in every commercial email that is sent to ensure the sender does not fall foul of the Spam Act.

• Consent - make sure the sender has consent to contact the recipient and can prove it has obtained it.
• Identify - include accurate information to identify the sender or its business as the authorised sender of the message.
• Unsubscribe - make sure the sender's messages have a functional unsubscribe facility, so that recipients can unsubscribe at any time.

Importantly, the Spam Act does not just prohibit emails, it extends to Instant Messages (MSN) SMS and MMS messages through mobile phones.

What is consent?

It must be clear that the recipient has consented to receive the message. Consent may be express or implied from the conduct or other business relationships. However, merely because a customer has published their email address does not necessarily mean they consent to receiving all emails from a supplier for example. 

Importantly, government bodies, charities, religious organisations and registered political parties may send commercial messages so long as they identify themselves. They do not need to seek consent or provide a functional unsubscribe link. 

Why does it matter?

It matters because the fines that may be imposed can be astronomical. In some cases the fines may be extreme as $1 million per day. The sender may also be subject to other penalties under the Trade Practices Act for misleading and deceptive conduct. 

There are industry specific codes that have been developed to complement the Spam Act. These codes provide helpful guides to ensure compliance with the Spam Act. The Australian Communications and Media Authority regulates these codes.  An example code relates to the Do Not Call list recently introduced into Australia. 

If there is any doubt whether a message will breach the Spam Act, the sender should seek legal advice, there is often not much work involved, but a lawyer can only assist the sender before a message has been sent. After it has been sent it is more a case of damage control. 

For further information or advice on this topic, please contact Russell Morley, Senior Lawyer, by email at rmorley@talbotolivier.com.au.