Email Spam

The Spam Act 2003 (Spam Act) sets out Australia’s spam rules. They include when commercial electronic messages can be sent and what information must be included in the message.

Spam rules are important as they prevent intrusion on an individual’s privacy, which can cause offence or harm. They also ensure that Australia’s electronic communication channels are working effectively.  The ACMA plays a key role promoting responsible industry practice and enforcing the spam rules.

You must comply with these rules if you’re planning to send any commercial electronic message to an electronic address, or have engaged someone to send them on your behalf. This includes messages sent by:

• email
• SMS
• MMS
• instant message

The rules apply to messages sent to an electronic address, like a mobile number or email address, which contain a commercial element. This includes an offer to supply, provide, advertise or solicit:

• goods or services
• land, or an interest in land
• a business or investment opportunity.

The rules also apply to a person who assists or enables a person to dishonestly obtain property or a financial advantage.

There are three key parts to the rules that you need to be aware of:

1. Permission (consent) – messages can only be sent with the permission of the person who owns the account for the address (usually the recipient).

2. Identification – messages must contain the name and contact details of the person or business that authorised the message (sender identification).

3. Unsubscribe – messages must contain a low (or no cost) way for the recipient to stop getting messages (to ‘opt out’ or unsubscribe)

Commercial electronic messages can only be sent if the account holder (for example, the person who owns the email or phone account) has given permission. Permission can be given directly (‘express’) or, in limited circumstances, apply indirectly (‘inferred’).

• Express permission  – an individual agrees to receive your marketing. For example, a person may sign up to your mailing list.
• Inferred permission  – you may be able to infer permission from an individual’s conduct, business or other relationships. For example, if a consumer holds a bank credit card, that bank may contact them with related offers.
• Withdrawn permission  – people can withdraw their permission (unsubscribe) at any time after it is given. These requests must be acted upon, and you must stop sending the person commercial messages within five business days.

You should keep a clear record of all instances where permission has been given, including who gave the permission, when, where and how. Under the Spam Act, it is up to you to prove that consent exists – even if you have purchased a mailing list from another business or a third party sends messages on your behalf.

You can’t infer permission to send commercial messages simply because a number or email address is published (such as online or in a directory). If you want to infer permission this way, you must be able to meet specific requirements in the Spam Act about ‘conspicuous publication’. These include ensuring that:

• messages sent concern matters relevant to the role of the recipient
• the electronic address is for a particular employee or office holder
• the electronic address wasn’t published with a statement that the receiver doesn’t want to receive messages.

There needs to be a strong link between the product you are promoting and the person that receives the message. For example, you may be able to infer consent to send a message advertising your employment agency to the recruitment manager at a business, if their electronic address has been published. However, you could not infer consent to send the recruitment manager messages about web optimisation, as this is not directly related to their role.

Messages also need to be sent to a particular employee or office holder, for example jane.bloggs@business.com.au or recruitmentmanager@business.com.au.

If you send a message to a generic email address, like info@business.com.au, then you may risk breaching the Spam Act

More information can be found on the ACMA website

If you have been Spammed recently you can make a complaint directly to ACMA who will than act on the complaint.