Last week, Get Wines Direct was formally warned by the Australian Communications and Media Authority (ACMA) to stop spamming their email marketing list. This is a timely reminder for all Australian online businesses to check their own email marketing practices and make sure they comply with the Australian Spam Act.
Do you “spam”? Are you sure?
The Spam Act of 2003 prohibits the “sending of unsolicited commercial electronic messages”. And the penalties for breaking this law can be steep. For sending emails without consent, individuals can be fined $8,500 for each breach and companies can be fined $170,000!
To ensure you are not sending spam, you must comply with these 3 things:
1. Consent: You can only send commercial electronic messages if you have someone’s express or inferred consent. If you offer, advertise or promote your goods or services, or someone else’s goods or services in an ‘electronic message’, this is considered a commercial message and you require their consent before sending it.
2. Identify: Any message you send must clearly identify the person or business sending the message. Ensure your business details and contact information are clear and up-to-date in your message.
3. Unsubscribe: All electronic messages you send must allow people to indicate they no longer want to receive the messages. You cannot make this a difficult, complicated or costly process. And if someone does indicate they want to unsubscribe, you are required to action this within 5 working days.
The missing unsubscribe facility in emails is one of the most common breaches of the Act. Last year, GraysOnline auctions received a $165,000 fine and Cellarmaster Wines was fined $110,000 for not providing an ‘opt out’ option on their messages. Groupon has been issued a warning for the same thing.
Note that the Act states “electronic messages” – so this is not restricted to just emails, it covers SMS text messages too!
Does my e-newsletter need to comply?
Strictly speaking, the Act covers “commercial” messages and so “factual information” newsletters might squeak by.
But if your newsletter contains any commercial information – like product details or prices – then it will be covered by the law and need to comply with the 3 restrictions above. This means you will need specific consent before sending it, identify yourself in the message and allow recipients to unsubscribe.
Government bodies, registered charities, registered political parties and educational institutions are also given a pass under the Act. But it’s unlikely that your business fits into any of the exemptions. So ensure your house is in order and, if in doubt, always include an option for people to unsubscribe.
Remember, reporting spam is getting easier
It is now easier than ever to report both email and SMS spam messages. You can do this by forwarding spam emails to email@example.com and spam text messages to (0429) 999 888.
The reporting of spam is helping ACMA to warn consumers about spam-based scams, such as the Queensland Flood appeal and 2010 FIFA World Cup scams. Whilst there is not a lot that can be done yet about overseas spam, at least enforcement action can be taken within Australia.