The following information is extracted from the Spam Act 2003: An Overview for Business document developed by The Department of Communications, Information Technology and the Arts. It is intended to inform you about your obligations as a business when dealing with electronic messaging – including emails.
Web Prophets t/a Etools recommend that you consult your legal advisors if you are unsure of any compliance issues as we are not responsible for the obtaining and editing of addresses to meet The Spam Act 2003 conditions. It will be assumed that all email addresses provided to Etools will comply with The Spam Act 2003.
WHAT IS SPAM?
The Spam Act refers to spam as “unsolicited commercial electronic messaging”. “Electronic messaging” covers emails, instant messaging, SMS and other mobile phone messaging, but does not cover normal voice-to-voice communication by telephone.
To be covered by the Spam Act, the message must be commercial in nature — for instance offering a commercial transaction, or directing the recipient to a location where a commercial transaction can take place. There are a large number of commercial electronic messages that can be sent legitimately.
They are only considered to be spam if they are sent without the prior consent of the recipient - as unsolicited messages. A single message may be spam. The message does not need to be sent in bulk, or received in bulk. In addition to prohibiting spam, the Spam Act lays out rules for sending legitimate commercial electronic messages.
The Spam Act says that unsolicited commercial electronic messages must not be sent. Messages should only be sent to an address when it is known that the person responsible for that address has consented to receive it.
RULES FOR SENDING COMMERCIAL ELECTRONIC MESSAGES
Commercial electronic messages must contain:
• Accurate information about the sender of the message; and
• A functional way for the message’s recipients to indicate that they do
not wish to receive in the future - that they wish to unsubscribe.
ADDRESS HARVESTING SOFTWARE, HARVESTED ADDRESS LISTS
Business must not use electronic address harvesting software or lists which have been generated using such software, for the purpose of sending unsolicited commercial electronic messages.
MESSAGES COVERED BY THE ACT
The Spam Act covers commercial electronic messages that are sent using applications such as: email; short message service (SMS); multimedia message service (MMS); and instant messaging (iM).
MESSAGES NOT COVERED BY THE ACT
The following examples are not covered by the Spam Act: Non-electronic messages (such as ordinary mail, paper flyers etc.); Voice-to-voice telemarketing; The majority of “pop up” windows that appear on the internet (they are usually an intrinsic part of a web page that has been accessed, rather than a message sent to the recipient address); and Messages without any commercial content that do not contain links or directions to a commercial website or location.
THE ACT COVERS MESSAGES WITH AN AUSTRALIAN LINK
The provisions of the Spam Act cover commercial electronic messages: originating in Australia that are sent to any destination; and originating overseas that are sent to an address accessed in Australia.
The maximum penalties under the Spam Act are substantial. A business that is found to be in breach of the Spam Act may be subject to a Court imposed penalty of several hundreds of thousands of dollars. The Spam Act specifies a number of options that are available to enforce the legislation, depending on the circumstances. The range of possible activities includes formal warnings, infringement notices (similar to a speeding ticket), and court actions.
3 STEPS TO FOLLOW
When reviewing your business practices, and the content of your commercial messages to ensure you comply with the Spam Act, you should consider the following three steps:
STEP 1 - CONSENT
Your commercial messages should only be sent when you have consent. This may be express consent from the person you wish to contact – a direct indication that it is okay to send the message, or messages of that nature. It is also possible to infer consent based on a business or other relationship with the person, and their conduct.
STEP 2 - IDENTIFY
Your commercial messages should always contain clear and accurate identification of who is responsible for sending the message, and how they can be contacted. It is important for people to know who is contacting them, and how they can get in touch in return. This will generally be the organisation that authorises the sending of the message, rather than the name of the person who actually hits the “send” button. Identification details that are provided must be reasonably likely to be accurate for a period of 30 days after the message is sent. This would be a consideration if the business was about to change address.
STEP 3 - UNSUBSCRIBE
Your commercial messages should contain an unsubscribe facility, allowing people to indicate that such messages should not be sent to them in future. This could be as simple as a line in your message saying “If you wish to opt out from future messages, send a reply with the subject UNSUBSCRIBE”. After a person indicates that they wish to unsubscribe, you have five working days to honour their request.
Similar to the identification of the message’s sender (step 2, above) the unsubscribe facility must be reasonably likely to remain accurate and functional for a 30 day period. It need not be an automated process, but should be reliable.
Extract from Spam Act 2003: An Overview for Business
Developed by The Department of Communications, Information Technology and the Arts.
More information is available online at: www.acma.gov.au/Industry/Marketers/Anti-Spam/Ensuring-you-dont-spam/spam-spam-act-2003-faqs