Online advertising is valuable, a direct line into the lives of your customers. On the other hand, the Spam Act 2003 (Act) imposes severe penalties on sending spam.
WHAT COUNTS AS SPAM?
Any commercial electronic message sent without the consent (explicit or inferred) of the recipient will breach the Act. The categories of messages include emails, mobile phone SMS and MMS and instant messaging.
In order to constitute spam, a message must have a commercial purpose. Be particularly careful that you are not sending an unwanted message if it contains material related to buying, selling or advertising.
To avoid being classed as spam, assure yourself that the recipient of your message has given express or inferred consent to its receipt. Consider the nature of your relationship with the client or business contact. Would it be reasonable for your customer to expect that you would send a commercial message? Have they signed up to a mailing list, or asked for more information from you?
THE PENALTIES
Anti-spam legislation is seen as an adjunct to the Federal Government’s Privacy Act, which means spam is perceived as an invasion of privacy.
An infringement notice can involve a fine of $440 per contravention (that is, each message) for an individual, and corporations can be fined $2,200 per contravention. If a court prosecution follows, the penalties escalate to $2,200 for individuals and $11,000 for corporations.
WHAT CAN YOU DO?
To make sure the Act doesn’t catch your commercial messages:
- check that they accurately identify your organisation or the individual that authorised the sending of the message;
- check the process for creating your mailing lists: those on your list must have either consented expressly or you must be confident to infer their consent;
- check that your commercial electronic messages have an operational “unsubscribe” address that can process and act on requests to “unsubscribe” within a reasonable period.
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