Many of us, have from time to time, received unsolicited emails or other messages from unknown sources, or businesses keen to advertise an event or product through content marketing. This would seem to have become even more rife during the COVID-19 period, as businesses have sought to expand their offerings and clientele in challenging circumstances.

It is important to note however that in Australia, legislation known as the Spam Act 2003 (Cth) (“the Act”) sets out rules relating to spam messages, including information relevant to senders as well as receivers of such messages.

The Act provides that, subject to certain exceptions, an unsolicited commercial electronic message (“CEM”) (which is broadly defined and can include emails and SMS messages), must not be sent without the consent of the relevant electronic account holder of the email address, instant messaging service, telephone number or other account holder (section 16 of the Act).[1]

Consent under the Act is taken to constitute both express consent or consent that can be reasonably inferred from the conduct and the business and other relationships of the individuals or organisations concerned, and may not be inferred from the mere fact that a relevant electronic address has been published.[2]

There are however two exceptions relevant to section 16 of the Act, namely a “conspicuous publication” and a “designated message”.

(a) Conspicuous publication[3]

Generally speaking, if the particular electronic address has been:

    • conspicuously published, and
    • it would be reasonable to assume that this occurred with the agreement of the relevant employee/director/partner/office holder/individual/organisation, and
    • it is not accompanied by a statement that the relevant account holder does not want to receive unsolicited commercial electronic messages,
    • then the relevant account holder is taken to consent to the sending of such commercial electronic messages to that address if the messages are relevant to the work-related business, functions or duties of the employee, director or partner or the position or role concerned.

(b) Designated commercial message[4]

One of the types of designated commercial messages is a message that consists of no more than factual information and other additional information specified in the Act, and which complies with other specified conditions.

There are also other designated commercial messages defined in the Act such as messages authorised by government bodies, political parties, charities and educational institutions.

The Act also requires that CEM’s include accurate sender information and an avenue for the recipient of the message to unsubscribe.[5]

It is important to note that the Act also prohibits acquiring or supplying address-harvesting software and harvested-address lists for the purpose of sending commercial electronic messages.[6]

Failure to comply with the requirements in the Act can lead to the imposition of penalties, such as pecuniary penalties, compensation, recovery of financial benefits or an injunction.[7]

These pecuniary penalties can be severe, with the Australian Communications and Media Authority (“ACMA”) website listing that repeat corporate offenders may face penalties of up to $2.1 million a day.

Recent matters published on the ACMA website illustrate some of the penalties which have been imposed as follows:

  • In November 2019, following an investigation by the ACMA, a Sydney based online marketplace, Oneflare Pty Ltd was made to pay a $75,600 infringement and entered into a court-enforceable undertaking to guarantee future compliance. Oneflare was investigated by the ACMA after complaints were received about SMS messages sent without consent.[8]
  • In January 2020, Singtel Optus Pty Ltd also entered into a court-enforceable undertaking to guarantee future compliance and was made to pay a $504,000 infringement notice after an ACMA investigation found that Optus continued to send SMS and email marketing messages to consumers after they had unsubscribed. Optus was also found to have breached the Act for sending out commercial emails in the form of billing notices that did not include an unsubscribe facility.[9]

If you wish to discuss this article, or any other matter relating to this article, please feel free to contact Felicity Cara-Carson or Thomas Abraham on (03) 9614 7707.

[1] SPAM Act 2003 (Cth), Section 16.

[2] SPAM Act 2003 (Cth), Schedule 2.

[3] SPAM Act 2003 (Cth), Schedule 2, cl 4.

[4] SPAM Act 2003 (Cth), Schedule 1.

[5] SPAM Act 2003 (Cth), Section 17.

[6] SPAM Act 2003 (Cth), Part 3.

[7] SPAM Act 2003 (Cth), Parts 4, 5, 6 and 7.

[8] https://www.acma.gov.au/articles/2019-11/oneflare-pays-75600-infringement-notice-spamming

[9] https://www.acma.gov.au/articles/2020-01/optus-pays-504000-spamming-australians

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