The 3 Keys to Email Marketing Law in Australia
12 Jun, 2015

Suprising fact: Email spam is illegal in Australia. More surprising: If your marketing emails are not structured correctly, you can face prosecution.


The Spam Act

Everyone knows that spam is a nuisance. Many countries including Australia implemented legislation in the last decade to crack down on unsolicited marketing emails. The good news is that numbers of unsolicited messages have dropped considerably. The bad news is that your marketing might be breaking the law without you even realising it.

To help you stay on top of a law you might have forgotten about, here are the three keys to email marketing under the Australian Spam Act 2003.


1. Get permission before you send

Spam is, by definition, an unsolicited message. Therefore your first step is to overcome that word “unsolicited”. Simply put, that means getting consent from your recipients.

Under the Spam Act, only certain organisations are allowed to send messages without the consent of the recipient. So unless you are a government body, a registered charity or political party, you need your prospects to agree to receive advertising from you.

In Australia, consent is assumed to be given in one of two ways:

  • Express consent, where a person specifically and intentionally opts-in to receiving your messages; and
  • Inferred consent, perhaps better termed as implied consent, where you have a business relationship with a person and a reasonable justification for contacting them.

Obviously, express consent is a clear-cut issue. When you’ve signed up to a newsletter online, or entered a competition with a checkbox saying you agree to receive communications, you’ve provided express consent. Even though the resulting emails might not be relevant to your interests, they’re not considered spam because you agreed to receive them.

Inferred consent is more ambiguous. The Australian Communications and Media Authority (ACMA) has the final say in whether inferred consent exists. In rare cases, a company can claim inferred consent if they have legally purchased lists of contact details from an authorised provider. BUT (and that’s a big but!) if these lists have been compiled by address harvesting software, it’s still illegal.


2. Make yourself known

Your marketing emails must clearly show who you are, and how your readers can contact you. Recipients can lodge complaints if they can’t work out who has sent them a message.

It is here that one of the most famous prosecutions under the Spam Act came about. In 2009, OptusZoo was fined $110,000 for sending text messages to customers without identifying themselves. Thousands of people received message from ‘966’, which was intended to translate as “Zoo” on the phone keypad. ACMA agreed that this was insufficient and unclear.

When identifying yourself in your marketing emails, consider whether your readers will see your details:

  • In the email’s ‘From’ field.
  • In the subject line.
  • In the body of the email.

Any one of these options is considered sufficient, but good marketing practice suggests that if you are transacting legitimately, you shouldn’t be hiding your identity in the first place.

America’s CAN-SPAM Act also requires the email to include a legitimate physical address or PO Box where you can be contacted. If any of your customers are located in the USA, it might be worth safeguarding yourself by adding your address in the footer of your communications.


3. Provide a way out

No business wants to lose prospects, but in the world of email, it is mandatory that every email you send includes details of how to opt-out.

It doesn’t matter if the unsubscribe process is automated or manual, as long as it exists and is clearly explained in every commercial email. Some options are:

  • A one-click unsubscribe link.
  • A link to a form allowing users to change their email preferences.
  • A manual instruction such as “Reply to this email with ‘Unsubscribe’ in the subject line.

Whichever method you use, the Australian Spam Act gives you 5 days to action the request.


The last word(s)

Yes, that consent that you worked so hard to obtain can be withdrawn at any time. That’s why effective email design is so important to keep your prospects in touch with your business. We’ll talk about some of those strategies in a future post. Until then, remember the three key words of commercial email marketing: Consent, Identify, Unsubscribe.