Spam Act: Australia
Ethics and Regulation in Digital Marketing
Spam Act
Australian Communication and Media Authority has implemented Spam Act 2003 and the Spam Regulations that marketers need to be aware of for sending marketing emails and messages.
ACMA regulates communications and media to contribute to maximising the economic and social benefits of communications infrastructure, services and content for Australia.
Compliance with the law requires if you plan to send marketing messages or emails, you must first have consent from the person who will receive them.
Even if someone else is sending out your marketing messages for you, you must still have consent from each person who will receive your messages.
After you get consent, you must ensure your message:
- identifies you as the sender
- contains your contact details
- makes it easy to unsubscribe
Consent can be either express or inferred.
A person who gives express consent knows and accepts that they will receive marketing emails or messages from you. This is best practice when it comes to consent.
People can give express consent by one of the following:
- filling in a form
- ticking a box on a website
- over the phone
- face to face
You cannot send an electronic message to ask for consent, because this is a marketing message.
Keep a record when a person gives express consent, including who gave the consent, when and how.
Under the Spam Act, it’s up to you to prove that you have a person’s consent.
In some circumstances, you may infer that you have consent to send marketing messages if the recipient has knowingly and directly given their address and it is reasonable to believe they would expect to receive marketing from your business.
For example, if someone has subscribed to a service, has an account or is a member, and the marketing is directly relevant to the relationship – such as a person’s savings bank telling them about another savings account with higher interest. It would not cover the bank trying to sell them insurance products.
It does not cover sending messages after someone has just bought something from your business.
Inferred consent is not as reliable as getting someone’s express consent.
Here are some of the examples of companies getting hefty fines from the authority for not complying with the law.
Woolworth
Supermarket giant Woolworths has been hit with the media regulator’s largest fine yet – more than $1 million – after more than 5 million breaches of spam regulation. Woolworths will pay $1,003,800 for sending marketing emails to consumers after they had unsubscribed.
Violation: Sending marketing emails to consumers after they had unsubscribed.
CBA
An Australian Communications and Media Authority (ACMA) investigation found CBA sent more than 61 million marketing emails to customers that unlawfully required them to log-in to unsubscribe. CBA sent a further 4 million marketing emails that did not have a functioning unsubscribe facility.
Violation: CBA sent more than 61 million marketing emails to customers that unlawfully required them to log-in to unsubscribe. CBA sent a further 4 million marketing emails that did not have a functioning unsubscribe facility. The CBA was also found to have sent more than 5,000 marketing emails to customers who had asked to unsubscribe from these messages.
Binance
An ACMA investigation found Binance Australia sent over 5.7 million commercial emails that either made it difficult for consumers to opt-out by requiring them to log into an account or didn’t contain a way to unsubscribe. The ACMA also found that Binance sent 25 emails without the consent of the recipients.
Violation: Binance Australia sent over 5.7 million commercial emails that either made it difficult for consumers to opt-out by requiring them to log into an account or didn’t contain a way to unsubscribe. The ACMA also found that Binance sent 25 emails without the consent of the recipients.
DoorDash
Food delivery giant DoorDash has been hit with a $2 million fine for breaching Australian spam laws. The Australian Communications and Media Authority (ACMA) penalized the company for sending more than one million texts and emails that violated the rules. Australians find it incredibly frustrating when they receive marketing messages from businesses like DoorDash after they have taken the time to unsubscribe. It is unacceptable that DoorDash’s prospective contractors were sent messages without an unsubscribe facility about a business opportunity that they may not have wished to pursue.”
Violation: Inundating customers and delivery drivers with texts and emails when they had already unsubscribed and not giving them an option to unsubscribe.
Latitude
The Australian Communications and Media Authority said the non-bank lender had paid fines totalling $1.55 million, after an investigation found Latitude mischaracterised commercial emails and texts that were promoting its products as “information only”, in breach of the Spam Act of 2003.
Violation: Latitude mischaracterized commercial emails and texts that were promoting its products as “information only”, in breach of the Spam Act of 2003.
Sportbet
Sportsbet is facing a record $3.7 million indemnity bill for sending 150,000 spam messages to punters who had unsubscribed from the alerts, which were also occasionally sent without any opt-out function. The texts and emails offered incentives to place bets on upcoming events or notifications about race.
Violation: for sending 150,000 spam messages to punters who had unsubscribed from the alerts, which were also occasionally sent without any opt-out function.
Tiger Airways
Tiger Airways has been hit with a $110,000 fine for continuing to spam customers after they unsubscribed from marketing emails.
Violation: Continuing to spam customers after they unsubscribed from marketing emails.
GraysOnline
An Australian Communications and Media Authority (ACMA) investigation found Grays’ decision to treat an email campaign introducing its GraysEscape website as not promotional was incorrect. As a result of the decision, Grays sent messages without an opt-out facility and to some people who had previously withdrawn their consent to receiving marketing messages, the regulator said.
According to the ACMA, the Spam Act requires that all marketing emails are sent with the consent of the recipient, and include an option for recipients to opt-out of receiving further marketing messages.
Violation: For mischaraterizing GrayEscape website as non promotional, and sending messages without an opt-out facility and to some people who had previously withdrawn their consent to receiving marketing messages.
AusBoots
Victorian ugg boot business Ausboots, run by Maree Dennison, emailed the Ausboots March newsletter to thousands of people on March 5 with a coupon code that offered a $10 discount.
Evidence is mounting that the email distribution list used by Ausboots contained many of the hacked email addresses of those who signed up to the ABC’s Making Australia Happy website.
Many who checked their subscription status to the Ausboots newsletter also noticed their postcode and state was listed – the same postcode and state they supplied to Making Australia Happy.
The Spam Act prohibits the sending of unsolicited commercial electronic messages - known as spam - with an Australian link.
Violation: for sending unsolicited marketing messages to hacked emails.
Nokia
Finnish-based Nokia has been slugged with a $55,000 fine by the Australian communications regulator after spamming phone owners with tips about Nokia mobile phones.
Nokia breached three sections of the Spam Act by sending text messages without consent and which did not give recipients an opportunity to unsubscribe, the Australian Communications and Media Authority (ACMA) found following a one-year investigation.
Violation: for spamming phone owners with tips about Nokia mobile phones without consent and which did not give recipients an opportunity to unsubscribe.
OptInRealBig.com
Scott Richter and his Colorado-based company OptInRealBig.com are alleged to have been one of the world’s biggest spammers, sending a staggering 38 billion messages a year to the email inboxes of unwitting recipients, pushing everything from mortgages to pornography websites. Microsoft and the New York attorney general, Eliot Spitzer, sued Mr Richter for $18m in 2003, accusing him of violating state and federal laws, after “spam traps” set by the software company netted some 8,000 messages containing 40,000 fraudulent statements.
Violation: for collecting opt-in list without permission (email ids were culled from websites using automated software).
Other List
ACMA maintains a website that lists all investigations into spam and telemarketing.
According to ACMA, “The law protects you from commercial emails and SMSs you did not agree to receive. It also protects you from unwanted phone calls and fax messages if you have signed up for the Do Not Call Register.”