A Little Known Clause in the Australian Spam Act

May 6th, 2008 by Heather Maloney

Before I talk about the little known clause, let me first give you an extremely brief summary of what the Australian Spam Act requires:

  1. Consent – this can be inferred or explicit, but the onus is on the business sending the email to ensure that they can prove they have received consent from the recipient to sending emails or sms messages.  With regard to inferred consent, the Act talks about “an existing business or other relationship, where there is a reasonable expectation of receiving those commercial electronic messages”.  ACMA then gives an example of a relationship where you could infer consent as: strong business relationship with the holder of an electronic address – for example, the address holder is a member of a club, a subscriber to a service, or a client it deals with on an ongoing basis.
  2. Identify the Sender – your messages must identify who is sending the information, including your name, business name, phone number, address and ABN.  That’s why we have this information included at the bottom of all your eNudge emails.
  3. Ability to be Removed / Unsubscribe – this should be an easy process for a person receiving your emails or sms messages.  This is why eNudge places an unsubscribe link at the bottom of all eNudge emails, and instructions for unsubscribing by replying included at the end of all eNudge sms messages, automating the unsubscribe process for you.

Please note, the Australian Spam Act applies wherever there is an Australian link – if the message was commissioned in, sent from, or sent to, an Australian location then it applies.

So, what’s this little known clause?  It also relates to consent: that consent can be inferred from conspicuous publication of a work-related electronic address.  There are some key rules around using a conspicuously published work email address:

  1. You can’t use the email address (e.g. from the person’s website, telephone directory or brochure) if they also state next to it that unsolicited commercial emails are unwelcome.
  2. The email you intend to send must be directly related to the person’s line of work.  An example given by ACMA is that if you sell washers (for taps) you can’t say that every person needs a washer because everyone has a tap in their home!Instead the example given is that the Purchaser working for a bathroom supplies business could be considered to have a job directly related to the line of work of selling tap washers.

In summary, AMCA states that there must be a strong link between what you are promoting and the recipient’s role or line of business. You cannot infer someone’s consent just because you believe your product would benefit them.

Warning!!  As this is a little known about clause in the Spam Act, that means that the people receiving your emails don’t know about it either.  So if you are relying on this clause when sending a particular email campaign, please make sure that you explain to the recipient, right at at the start of your email, how it is that you have their email address, and why you are able to email them.  I strongly recommend that you approach such an email very politely and professionally to ensure that you do not damage your business reputation or annoy people.

Like to discuss this topic further?  We’re on standby to talk with you via our blog.

Before acting on the above information, please first refer to: The Spam Act Frequently Asked Questions (ACMA)

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