The Spam Act 2003 (Cth) (Act) outlines the penalties imposed on individuals or corporations who send unsolicited commercial electronic messages in forms such as SMS, MMS, instant message or email.

Recent record fines under the Act demonstrate the Australian Communications Media Authority’s (ACMA) willingness to impose significant penalties when issuing infringement notices. They also illustrate the importance of organisations and individuals ensuring they do not send unsolicited messages in breach of the Act.

Recent fines by the ACMA include:

Major Australian supermarket

The ACMA found that this major Australian supermarket (Supermarket) had engaged in more than five million breaches of the Act when it sent marketing emails to consumers after they had unsubscribed from previous messages.

As a result the ACMA issued an infringement notice to the Supermarket imposing a pecuniary penalty of more than $1.03 million. The Supermarket also agreed to a three year court-enforceable undertaking to ensure it did not engage in further contraventions of the Act.

The penalty imposed on the Supermarket was the largest the ACMA has issued regarding breaches of the Act to date.

Large Australian telecommunications provider

ACMA issued an infringement notice to various companies that this large Australian telecommunications provider (Telecommunications Provider) operates. The Telecommunications Provider paid $504,000 in pecuniary penalties for sending SMS and email marketing messages to consumers after they had unsubscribed, breaching spam laws two million times.

It was also found that the Telecommunications Provider sent emails that did not include a functional unsubscribe facility.

The amount paid by the Telecommunications Provider is the second largest amount paid in response to an infringement notice issued by ACMA for breaches of the Act.

What the Act requires

The Act applies to commercial electronic messages. An electronic message sent by SMS, email or IM will be classified as a commercial electronic message if its purpose is to offer, advertise or promote the supply of goods or services.

The Act states that a person must not send, or cause to be sent, a commercial electronic message unless an exemption applies under the Act.

Exemptions apply to the following messages:

• Messages which consist of no more than factual information (with or without directly-related comment) and any or all of: the name, logo and contact details of the person or organisation who authorised the message and its author; and accurate sender information
• Messages which are authorised by a government body, a registered political party or a registered charity and if the message relates to goods or serves the relevant body supplies
• Messages sent by or on behalf of an educational institution, if the recipient is or has previously been a student of the institution and the message relates to goods or services supplied by the institution.

To avoid liability under the Act, it is important that individuals and corporations ensure that they:

• Obtain consent from recipients to receiving messages
• Provide sender information in the messages they send
• Offer the ability to unsubscribe from receiving further messages
• Do not use address harvesting software.

Obtaining consent

Marketing messages may only be sent with the consent of the recipient. Consent may be expressed or inferred. Examples of expressed consent include providing instructions in person, ticking a consent box on a web page or filling out a form. Alternatively, inferred consent may be proven through the conduct and other relationships of the individual or organisation concerned.

Inferred consent may be proven if a person or organisation can satisfy each of the following:

• The recipient is a current customer
• The message relates to the product or service the recipient already purchased from the sender of the message.

Otherwise, permission may be inferred if an individual or organisation can satisfy all of the following:

• The recipient made their email address or phone number public, such as online or in a directory
• The person does not state that they do not want commercial messages
• The phone number or email is for an individual or office holder
• The message relates directly to the person’s role or function
• There is a link between what is being promoted and the recipient’s role or function.

It is important to note that even if a marketing list is purchased, responsibility for ensuring that permission is obtained is still required to be obtained by senders of commercial messages for any addresses used from such lists.

Sender identification

Senders of commercial messages must:

• Identify their correct legal name or legal organisation name and Australian Business Number
• Include current contact details for the sender
• Ensure the information in the message remains correct for at least 30 days after the message is sent.

Ability to unsubscribe

It is important to ensure that recipients of commercial messages are able to unsubscribe from electronic mailing lists. Under the Act, every commercial message must include an unsubscribe option that:

• Clearly presents unsubscribe instructions
• Honours any request to unsubscribe within 5 working days
• Does not require the payment of a fee or require the recipient to use a premium service to unsubscribe
• Does not cost more than the usual amount for using the address (e.g. text charge)
• Contains a valid address for at least 30 days after the message is sent.

Examples of unsubscribe messages are provided by ACMA on its website.

Address-harvesting software

Under the Act, individuals or businesses also cannot use, supply or acquire address harvesting software or lists created using address harvesting software.