Australia's Anti-Spam Legislation
Spam is the term used to refer to electronic 'junk mail', unsolicited emails or messages received by a person through email or on their mobile phone. The content of spam messages varies from promotion of an organisation's products or services to offensive material, viruses or fraudulent activity.
In Australia, legislation has been implemented to deal with unsolicited electronic communications. The Spam Act 2003 (Cth) (the 'Spam Act'), covers email, instant messaging, SMS (text messages) and MMS (image based mobile phone messaging) messages of a commercial nature. It does not cover marketing faxes, internet pop-up ads or voice telemarketing. The Spam Act is complemented by the Spam Regulations 2004 and the Telecommunications Act 1997, and the Australian internet and e-marketing industries have also developed separate codes of practice to supplement the Spam Act and its implementation.
Under the Spam Act, it is illegal for unsolicited commercial electronic messages that have an Australian "link" to be sent. A message has an Australian link if it originates or was commissioned in Australia, and is sent to a recipient in Australia or overseas. The Spam Act also covers messages that originate overseas but have been sent to an address accessed in Australia. To avoid breaching the provisions of the Spam Act (and the applicable penalties), organisations that intend to send commercial electronic messages must comply with three requirements: Consent, Unsubscribe and Identity.
Consent
Whether you intend to send commercial electronic messages to new customers and clients or to those already contained on a database, you always need the recipient's consent before you can send them those messages. You can obtain their consent either expressly, or it can be inferred from your dealings with them.
Unsubscribe
Under the Spam Act, every commercial electronic message must contain a functional and legitimate 'unsubscribe' facility. This is an electronic address the recipient can use to tell the sender that they do not wish to receive future messages.
Identity
Any commercial electronic message must contain accurate details by which the recipient can identify the individual or organisation that authorised the commercial electronic message. This requirement applies to all commercial electronic messages sent by any organisation, even if that organisation is partially or fully exempt from compliance with the Spam Act. The message will be classified as spam if this condition is not met.
Exemptions
Certain types of electronic messages and some organisations may be exempt or partially exempt from compliance with the Spam Act. An exempt person or organisation is not required to meet the consent and unsubscribe requirements of the Spam Act. However, they must still meet the identity requirement. Certain messages from the following types of organisations are exempt:
- government bodies; or
- charities, religious and non-government organisations; or
- registered political parties.
If an organisation falls into one of these categories, then any commercial electronic messages it sends are exempt from the Spam Act's consent and unsubscribe requirements if, and only if, the message relates to products or services supplied by the organisation. Any electronic messages that contain products or services supplied by someone other than the organisation, will not be exempt from all three requirements under the Spam Act, even if the organisation falls into one of the above categories. Purely factual messages with no commercial content whatsoever are also exempt. However, most electronic newsletters do not constitute 'purely factual information'. While their content may be largely factual, their purpose is usually to promote an organisation's products or services. It is important to note that sending purely factual messages does not mean you have the recipients' consent to send future commercial messages, or to add them to a mailing list.
If your business or organisation sends any of these kinds of communications, then you have a responsibility to ensure you follow the rules. For further information, contact Faten Awad at Hutchinson Legal on (03) 9870 9870.
