SPAM – Australian Business And The Law
April 15th, 2009 // 9:52 am @ Fox
SPAM – unsolicited commercial electronic messages – that endless junk in our inbox that we try so desperately to reduce or remove.
As a business, are you guilty of adding to this global problem?
In Australia, the laws are quite clear on what you are allowed to do and what you are not. It is very important to businesses to be aware of the laws. Even the smallest company can be reported for not complying and the penalties are very steep. Although the SPAM Act 2003 covers SMS, MMS and IM, I am only referring to email in this post.
Consent
To send an email to anyone including a newsletter or brochure, there must be inferred or express consent.
Express consent – This is where a person has physically agreed to receive emails from a particular business. This consent may be given via ticking a box on a website, ticking a box on a form such as a membership application form, agreeing over the phone, handing over a business card or agreeing in person.
You cannot pre-tick a checkbox for consent on a website. The person must physically tick the box themselves.
Inferred consent – This is where there is an established business relationship. For example, if a person joins a membership based club or site, it is reasonable to expect to receive emails regarding account information, product information or emails specific to conducting a transaction. Inferred consent does not necessarily give permission to send marketing material or newsletters. It is better to gain express consent for this activity.
Conspicuous publication is when someone has publicly published their email address. In this case inferred consent is applicable. You can email this publicly published email address if the email is relevant to the person’s line of work. This does not mean you can start sending newsletters or promotional material to the address.
If in doubt about whether you are allowed to send something specific, gain express consent.
I have worked with many organisations where they say that one day they would like to send newsletters or promotional material. I ask them whether they have a subscriber list and the answer is generally, no. Don’t wait until you want to send newsletters and then realise that you don’t have a list to send to. Start now! Add a checkbox on your website form or on a paper-based membership form asking for permission. Then when one day arrives and you want to send newsletters, you have a list to work with.
Identify
Ensure your communication clearly displays the business details including:
- The name of the business, postal address, phone number, fax number, URL, email address and ABN or ACN.
- Logo if a html email
- The ‘From’ should clearly display the business name
- The reply path should be a valid email address
Clearly identifying your business will reduce the chance of the recipient or an ISP (Internet Service Provider) thinking your email is SPAM.
Unsubscribe
This is a very important function and mandatory. There must be a functional unsubscribe on every communication. This is generally placed in the footer and contains a sentence such as: ‘Unsubscribe me from the mailing list.’
This may be an email unsubscribe or one that happens through a website. The business has 5 days to ensure the person’s email address is removed from the mailing list.
Penalties are harsh for a business that fails to remove a requested unsubscribe. You would be surprised how many companies I have seen that tend to disregard this aspect, or offer the unsubscribe but then fail to remove the email address. Big No-No!
Australian Link
The SPAM Act 2003 applies to anything with an Australian link. This may be an email send that originates in Australia, a SPAM email that is received in Australia, or an offshore send to offshore recipients where the authorising business is registered in Australia.
You can read more about the SPAM Act 2003 and how it applies to business in Australia at http://www.acma.gov.au/WEB/STANDARD/pc=PC_310321.
Category : Online Laws & blog