Are your marketing campaigns compliant with the Spam Laws
Written By Tooba Khaliqy.
Email marketing campaigns can be an effective marketing tool and, when well executed, can result in a high rate of clients or contacts taking action. However, it only takes one disgruntled person to undo that hard work with a complaint to the communications watchdog, the Australian Communications and Media Authority (ACMA).
Wisewould Mahony recently advised a client on how to ensure that its marketing emails to existing and prospective customers are compliant with Australia’s anti-spam legislation, the Spam Act 2003 (Spam Laws).
The Spam Laws prohibit the sending of unsolicited commercial electronic messages and impose strict requirements that a business must comply with when sending marketing emails, SMS and other instant messages.
The key requirements are as follows:
- Consent: the business must have the customer/prospective customer’s consent to receive marketing emails;
- unsubscribe: the marketing email must include a functional unsubscribe feature; and
- identification: the marketing email must include the business’s up to date contact details.
Whilst the unsubscribe and identification requirements are relatively straightforward, the requirement for consent is more involved as consent can either be express or inferred. Express consent is when a person actively confirms they are prepared to receive email communications from you.
Inferred consent is not as clear, as there are many circumstances in which a business can rely on inferred consent to satisfy the consent requirement; however, the nuances and ambiguity of the Spam Laws makes assessing whether inferred consent has been obtained a complicated exercise. When in doubt, get advice on whether your interactions with clients constitute inferred consent.
Businesses should review their electronic marketing campaigns, processes and procedures to ensure compliance with the Spam Act and avoid significant penalties from ACMA.
