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Things for small businesses to consider when using email and SMS for marketing

Nov 08, 2022
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Spam Act and the use of electronic marketing

As businesses across Australia are relying more and more on digital and online marketing, this method of marketing is highly successful and in some cases, affordable for small businesses. It’s vitally important for businesses to keep in mind that digital marketing is also required to comply with the provisions of the Spam Act 2003 (Cth), the Spam (Consequential Amendments) Act 2003, and the Spam Regulations 2004 (jointly referred to as the Spam Act). This legislation aims to eliminate all unsolicited commercial contact or spam.

Overview of the Spam Act

The Spam Act covers commercial electronic messages that are sent using email, short message service (SMS), multimedia message service (MMS), and instant messaging.

The “commercial” element is important: The Spam Act only applies where the message either offers a commercial transaction or where it directs the recipient to a location where a commercial transaction occurs. The Spam Act sets out certain designated commercial electronic messages which are not subject to the Act. These include electronic messages from government bodies, political parties, religious organisations, charities, and, subject to certain conditions, educational institutions, as well as electronic messages containing only factual information and commentary directly related to that factual information (including transactions).

Non-electronic messages (eg ordinary mail, paper flyers, and facsimiles), voice-to-voice telemarketing, the majority of ‘pop up windows that appear on the internet, and messages without any commercial content will only be covered by the Spam Act where they contain links to a commercial transaction (for example, to another website, Facebook and Instagram Pages).

The Australian link

The Spam Act applies to commercial electronic messages having an ‘Australian link’. This includes electronic messages originating in Australia that are sent to any destination in the world in addition to messages originating overseas that are sent to an address accessed within Australia. The prohibition on spam originating overseas only applies where the sender of the spam did not know and could not have ascertained using reasonable diligence that the addressee had an Australian link.

The Fines For Breaches

Those who infringe the legislation, by sending spam having an ‘Australian link’, face penalties of A$11,000 for first-time offenders, A$55,000 for repeat offenders, and up to A$1.1 million per day for 2 or more offences. However, the Spam Act also contains other more flexible sanctions such as warnings and infringement notices.

The Spam Act is regulated by the Australian Communications Authority.

Helpful Links:

https://www.acma.gov.au/avoid-sending-spam
https://www.legislation.gov.au/Details/F2021L00285
https://www.legislation.gov.au/Series/C2004A01214

Author
Craig Barnden
Compliance Manager

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https://www.acma.gov.au/avoid-sending-spam
https://www.legislation.gov.au/Details/F2021L00285
https://www.legislation.gov.au/Series/C2004A01214

Author
Craig Barnden
Compliance Manager

small business small business insurance

General Advice Warning: This advice is general and does not take into account your objectives, financial situation or needs. You should consider whether the advice is appropriate for you and your personal circumstances. Before you make any decision about whether to acquire a certain product, you should obtain and read the relevant product disclosure statement.

All information above has been provided by the author.

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This article originally appeared on Ausure and has been published here with permission.