Spam, spam, spam, spam …
The rapid uptake of the internet from mere novelty value to an integral and incredibly powerful part of our highly connected world, has opened a Pandora’s Box of issues that the initial inventors of the technology may not have foreseen.
The letterbox drops of years gone by pale to insignificance as email and messaging networks now provide myriad companies ready access to the billions of consumers around the world for their marketing strategies. What restrictions, if any, are placed on potential abuse of this power?
The Spam Act (2003)
The Spam Act is managed by the Australian Consumer and Media Authority (ACMA) and was introduced to protect consumers from aggressive and unwanted marketing in the form of email, instant messaging, text messages (SMS), or image-based messaging (MMS). It does not cover marketing faxes, internet pop-ups, or voice telemarketing.
The Act lists certain organisations that are largely exempt:
- Government bodies
- Registered political parties
- Registered charities
- Religious organisations
- Educational institutions
The above organisations are still required to limit their communications to designated commercial electronic messages, meaning they may only include factual information, and the details of the sender must be clearly stated.
What about other businesses?
Businesses that are not on the above list can still send out designated commercial messages provided that the only information contained is factual and does not contain any form of marketing or promotion.
The law takes a holistic view in assessing this, which is to say that if any part of the overall message, be it within content, attachments, or a discrete footer, contains any form of marketing, then the whole message is regarded as non-compliant.
There are three other requirements for organisations not on the list:
- The recipient must give permission to receive messages
- The sender must be accurately and fully identified
- There must be a free and easy unsubscribe facility
However, it is in the implementation of these requirements where things can start to get somewhat convoluted.
Recipient must give permission
How is this determined?
A recipient may either give express permission – opt in –by ticking a box that authorises the receipt of messages, or it may be inferred, perhaps by signing up to an account and providing contact information. The Act states however, that a one-off purchase does not cut the mustard here.
Approved messages must further provide a free and easy-to-use unsubscribe facility, and this facility must be actioned by the sender within 5 working days.
However, as we have all no doubt seen, an unsubscribe link in small print buried in a footer at the end of a glossy email, while technically compliant, is far from obvious.
The Spam Act also prohibits the use of address harvesting software, and further, it prohibits the use of contact information made available by third parties who have collected contact information by the use of such methods.
The potential rewards from mass-marketing campaigns may be too tempting for some organisations to resist, and cases have appeared before the courts of businesses that have made a convenient interpretation of the rules.
In one such case, a business owner argued that since a recipient had not used the unsubscribe link, they had therefore given inferred approval to receive further communications. The court did not agree.
The Spam Act is designed to protect consumers from unwanted, aggressive marketing, and consumers perhaps need to be proactive in dealing with non-compliant examples. Whether sender or recipient, trained lawyers can give expert advice in this area of the law.