Consent, Identify, Unsubscribe - the Spam Act 2003 is easy
Spam has become a nuisance for just about anyone with an email address (in other words, everyone). With spam percentages now well above 60 per cent of all emails sent, unsolicited email is costing business time, productivity and ultimately, money.
And the problem is getting worse.
To quell this problem the Commonwealth Government introduced the Spam Act 2003, which came into force on 10 April 2004.
The Act applies to all Australian entities and prohibits spam originating in Australia being sent to any address and spam originating overseas being sent to an Australian accessed account. Business will now have to practice caution when sending commercial material electronically to customers, or potential customers.
Messages sent as emails, short message service (SMS), multimedia message service (MMS) and instant messaging (IM) are included in the legislation as potential sites of spam.
Businesses must follow three simple rules when sending electronic messages to ensure they do not contravene the law:
- The business sending the material must have the addressee's consent. This consent can either be express or inferred.
- The sender must clearly identify itself in the message
- Their must be an unsubscribe function available and businesses must deal with opt out applications immediately.
Express consent is a direct indication that a person wants you to send them electronic messages. Inferred consent is trickier and is where there is no direct instruction to send messages but it is clear that there is a reasonable expectation that messages will be sent. This applies where there is a previous relationship between sender and addressee or where the conduct of the addressee would indicate that they would like to receive electronic messages.
Examples of such conduct that indicates inferred consent includes online registration of products, business relations that are managed electronically (online banking for example), conspicuous, that is prominent, display of email addresses and email addresses on business cards.
All electronic messages sent must be relevant the addressee's role or business. If a builder's email address is extracted from the Yellow Pages, then only electronic messages that are advertising supplies or enquiring about work can be sent, not advertisements for cheap pharmaceuticals.
The penalties that are applied to companies that breach the legislation for the first time vary considerably from formal warnings to court procedures accompanied by fines of up to $220,000. A second contravention of the same provision may see a company facing fines of up to $1.1 million.
Further information
For further information about the Spam Act, visit the Federal Government's Comlaw website.