Things for small businesses to consider when using email and SMS for marketing
Spam Act and the use of electronic marketing.
As businesses across Australia are relying more and more on digital and online marketing, this method of marketing is highly successful and in some cases, affordable for small businesses. It’s vitally important for businesses to keep in mind that digital marketing is also required to comply with the provisions of the Spam Act 2003 (Cth), the Spam (Consequential Amendments) Act 2003, and the Spam Regulations 2004 (jointly referred to as the Spam Act). This legislation aims to eliminate all unsolicited commercial contact or spam.
Overview of the Spam Act
The Spam Act covers commercial electronic messages that are sent using email, short message service (SMS), multimedia message service (MMS), and instant messaging.
The “commercial” element is important: The Spam Act only applies where the message either offers a commercial transaction or where it directs the recipient to a location where a commercial transaction occurs. The Spam Act sets out certain designated commercial electronic messages which are not subject to the Act. These include electronic messages from government bodies, political parties, religious organisations, charities, and, subject to certain conditions, educational institutions, as well as electronic messages containing only factual information and commentary directly related to that factual information (including transactions).
Non-electronic messages (eg ordinary mail, paper flyers, and facsimiles), voice-to-voice telemarketing, the majority of ‘pop up windows that appear on the internet, and messages without any commercial content will only be covered by the Spam Act where they contain links to a commercial transaction (for example, to another website, Facebook and Instagram Pages).
The Australian link
The Spam Act applies to commercial electronic messages having an ‘Australian link’. This includes electronic messages originating in Australia that are sent to any destination in the world in addition to messages originating overseas that are sent to an address accessed within Australia. The prohibition on spam originating overseas only applies where the sender of the spam did not know and could not have ascertained using reasonable diligence that the addressee had an Australian link.
The Fines For Breaches
Those who infringe the legislation, by sending spam having an ‘Australian link’, face penalties of A$11,000 for first-time offenders, A$55,000 for repeat offenders, and up to A$1.1 million per day for 2 or more offences. However, the Spam Act also contains other more flexible sanctions such as warnings and infringement notices.
The Spam Act is regulated by the Australian Communications Authority.