Don’t get caught out by the Spam Act

no-spamWe’re coming up to 10 years since the Spam Act was introduced in Australia. So far the maximum penalty has been $4.5 million against a company, with the director personally hit with a further $1 million in fines. Whilst this has been the largest penalty handed out, there have been numerous other companies which have needed to pay penalties in the tens of thousands range because of these laws.

The definition of SPAM according to the Spam Act is any email or SMS message which could be commercial in nature. The content of the message, the way it is presented and other information are all used to determine if the message would fall under the definition of commercial.
I would strongly recommend that you obtain independent legal advice prior to sending out any message which could be deemed commercial regardless of its nature to ensure compliance with the Spam Act. As a general guide, any message which is a general broadcast message such as newsletters, promotions or targeted information could fall under the requirements of the Spam Act. Conversely confirmation emails such as booking confirmations, direct correspondence in regards to an active order or system notifications such as password resets do not fall under the requirements of the Spam Act.

There are three basic things which you need to do to stay compliant with the Act. The first is to obtain permission to send such emails or sms’s, the second is to provide an easy inexpensive unsubscribe method, and thirdly you must clearly identify your company.

1. Get permission first
Prior to sending out even 1 email message to a person, you must get permission from them. This can be in the form of express permission where they have expressly asked for you to include them in emails or implied permission, in other words a reasonable person would deduce that a customer doing a certain action would indicate that they are happy to receive email messages from you.
If you are going to include an “add me to your mailing list” checkbox on a sign up form, it is a good idea to make it “opt in”. In other words the new customer needs to actively tick the box to state they wish to receive commercial messages from you rather than have it ticked by default with a customer needed to actively un-tick that checkbox.

2. Have a working unsubscribe facility
If a person who previously said they want to receive email messages from your company decide they no longer do, there must be a clear and concise method for them to remove their email address from your mailing lists, and that method must work first time.
Once someone has indicated they no longer want to receive email or sms messages from you, you must honour that request within 5 days.
Using the unsubscribe facility must either be free, or have a minimum cost. A minimal cost could reasonably be the cost of sending an SMS or making a local phone call.

3. Clearly identify who you are
In January 2009, the ACMA fined Optus $110,000 for sending out 20,000 SMS’s to customers. It identified itself as 966 which Optus hoped people would both make the connection with the letters ZOO on a mobile phone keypad, and that ZOO is a product offered by Optus. The ACMA determined that this was insufficient identification and despite Optus’ best efforts, the fine was still imposed. (See http://www.caslon.com.au/anzspamprofile4.htm)
In all correspondence between your company and your customers, you must make sure that they can clearly identify it as correspondence from your company.

Over the next week, have a think about any correspondence your company has with customers and make sure you are 100% compliant with the Spam Act. Of course if you would like a system in place which can handle correspondence with customers including obtaining authorisation and automatically handling any unsubscribe requests, we are always happy to assist.

Disclaimer: This post is not legal advice, For legal advice specific to your own situation please contact a relevant legal professional. This has been based on information gathered from the ACMA’s anti-spam website. http://www.acma.gov.au/Industry/Marketers/Anti-Spam and Caslon Analytics http://www.caslon.com.au/anzspamprofile4.htm.

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