We recently had a client approach us who had started up her own business and was curious to know more about the laws around spamming.
It’s an important topic because the penalties of sending spam could be the difference between staying in business or having to shut your business down.
We asked one of our fixed-fee Commercial Law Specialists, Fiona, to explain exactly what is ‘spam’ and how businesses can avoid sending it.
What is Spam?
Spam relates to any unsolicited electronic messages. It includes emails, text and instant messaging. It applies to all communications that are sent from Australia, within Australia, and also communications sent from overseas to Australians. This is important to note, because if you are receiving electronic mail from an overseas business, then their organisation will need to comply with Australian laws and not the law of the country where the business resides.
So what makes electronic communication ‘spam’? To be spam, the communication must be sent with the purpose to offer, advertise or promote goods or services, or an interest an inland, and it must be unsolicited i.e. the person receiving the electronic communication has not consented to receiving the electronic communication from your business.
What does the legislation say?
The Legislation states you must not send unsolicited messages, so therefore you need to gain consent from people you send electronic messages to.
One way to ensure that you comply with this is to have an express consent contained on your website or communication which allows clients to ‘opt-in’ to receiving electronic communications from your business.
For example, this could be a statement on your website that prompts people to ‘sign up’ or states ‘I consent to receive communications from you’.
Can consent to receive electronic communications be inferred or implied?
If you have a relationship with a client or they have engaged your services previously or have purchased something from you in the past, this could constitute as inferred or implied consent to receiving electronic communications.
Another way to infer or imply consent is by publishing your email address on your website. This is often treated as implied consent because you are inviting the public to communicate with you.
However, the best way to ensure that you have consented to send electronic communications would be to obtain express consent from your customers or users of your services in the ways stated above.
What should your electronic communication include to avoid being Spam?
Your electronic communication must include current contact details that receivers of the communication can contact you on. The contact details must remain valid for a period of at least 30 days after you have sent the communication, and most importantly it needs to be a valid way for a receiver to contact your business.
Interestingly, the legislation does not specify what contact details need to be included, so it could be a phone number, email address, postal address, or address of your place of business etc.
The other important feature your electronic communication must contain to avoid being deemed as spam is an ‘unsubscribe’ option so that receivers can let you know if they no longer want to receive communications from you. This can be done in a number of ways such as clicking on a link to unsubscribe, a statement which directs receivers to hit return email with the word ‘unsubscribe’, or respond with ‘stop’ in a text message.
However you choose to set this up, it needs to be clearly stated in the electronic communication and importantly it needs to actually be an effective means for electronic communications to stop being sent from your business.
What are the penalties for not complying with legislation?
The penalties can be harsh if you’re found to be sending spam. It’s a civil penalty (not a criminal penalty) and it can vary anywhere from $9,000 for a first-time individual offender up to $1.8 million for a repeat offence by a corporation.
Two handy hints to avoid sending Spam
It’s important that you understand and comply with laws that govern electronic messaging. Our top two tips are:
- Ensure subscribers give you permission to contact them electronically, preferably by gaining express consent; and
- Ensure your subscribers have a valid and clearly stated option to ‘opt out’ of your electronic communications.
If you would like to know more about this topic and ensure that you are not breaching spam legislation, we can connect you with a commercial law specialist.
If you would like to book a Quick Match from Fiona McCord please follow the links on the Legally Yours website.
This article is written by Karen Finch in consultation with Fiona McCord and was first published on the Legally Yours website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.