What is spam? Email marketing laws in Australia

Introduction

It is highly likely that, in the 21st Century, your business associates or you will send and receive a number of emails every day. It is also possible that you will also receive unwanted email and correspondence, effectively known as 'Spam'. Despite appearing like an unregulated area with no overarching legal principles, the Spam Act 2003 (Cth) provides an extensive regulatory regime as to when emails are 'an effective marketing tool' and when emails become Spam.

What is Spam?

Under the Spam Act, something will be classified as Spam if it has all the following characteristics:

• It is a ''commercial electronic message'' as defined by the Act,
• It has the requisite "Australian link" as defined by the Act, and
• There is no authority to continue to have messages sent to the user.

Each element will now be discussed briefly.

When is the message a 'commercial electronic message'?

Essentially, if the message is transmitted via an electronic device and there is a link, email or telephone number which promotes, sells or stores goods and services, it will be a commercial electronic message. If the message transmitted is trying to direct users in respect to their property or finances, it will also be a commercial electronic message.

What does it mean to have an 'Australian link'?

Under the Spam Act, the message must have an Australian link to be deemed Spam. This means if:

• The message originated in Australia,
• Was sent by someone in Australia,
• Their organisation whose central management and control is in Australia when the message is sent, or
• The relevant account holder is in Australia,

then it will be deemed to have an Australian link.

There is 'no authority to continue to have messages sent': what does this mean?

Under the Act, unsolicited messages that are commercial electronic messages with the required Australian link may be deemed Spam. Examples include:

• The sender is sending messages to an address they ought to know does not exist,
• The sender is sending messages without accurately describing from whom the message is being sent (either the individual or entity), or
• The sender does not include an unsubscribe option with their message.

As a result, you still may be able to send bulk messages through mailing lists so long as you accurately describe who you are and you provide users the option to immediately unsubscribe should they desire.

Can I 'harvest' or supply data from automatically generated mailing lists?

The simple answer is generally 'no,' particularly if you are utilising software to 'harvest' data from unsuspecting users. This is heavily regulated under the Spam Act and there are associated penalties for engaging in such behaviour.

What penalties or court sanctions can be imposed on me for engaging in 'Spamming'?

Under the Act, there are a range of financial penalties that a court can impose if you are found to have engaged in Spamming.

These range from pecuniary fines to compensation orders against victims of Spamming should it adversely affect them.

The Federal Court also has jurisdiction to order both interim and final injunctions under Sections 32 and 33 of the Spam Act which prevents a person or company from engaging in similar behaviour in the future.

How can Sharrock Pitman Legal assist you?

As we move further into the 'Technological 21st Century', marketing tactics will continue to shift as people seek to gain a greater competitive advantage and higher proportion of the market share. The use of mail lists and big data can be effective ways to gain highly important information regarding preferences, trends and fads.

However, there is a fine line between innovation and breaching the law.

At Sharrock Pitman Legal, our experienced team will be able to effectively assist you in navigating these regulations so you might gain maximum advantage for your business into the future. Call Sharrock Pitman Legal today on 1300 205 506 or complete the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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