Spam Act
SPAM PROHIBITED
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 such messages 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 webpage 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.
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 must 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 must 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 commercial 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.