In 2006, Clarity 1 Pty Ltd and its director Mr. Wayne Mansfield received a total penalty of $5.5 million for sending unsolicited commercial electronic messages, and for using harvested address lists.
If you haven’t heard about this case, you may not be aware of the new rules in The Spam Act 2003 (Act), which are:
- A restriction on sending unsolicited messages
- A requirement to include a functional unsubscribe facility
- A requirement to include accurate sender information
What are the implications of these three rules? The latter two points are relatively easy to understand. The grey area lies mainly in the first point. According to the ACMA Fact Sheet 161 published in February 2010, a message will be considered 'unsolicited' where the recipient has not consented to the sending of the message.
The Fact Sheet explains consent in two forms:
Express consent can be gained if the recipient is clearly aware that he or she may receive commercial messages in the future, such as they subscribed on your website, informed their consent over the phone or face-to-face.
Inferred consent can come about in two ways, through an existing business or other relationship or through the conspicuous publication of a work-related electronic address.
For express consent, you may know who you currently have a strong business relationship that you can send your commercial information to. But what about the potential clients who you don’t know? Every day we can find thousands of business advertisements published on yellow pages, local business directory, websites and other business forums. They may need your products or services. Can you contact their 'conspicuously published work-related electronic address'?
A publicly listed email address does not mean you have inferred consent to contact them. The legislation targets the sending of unsolicited messages to strangers, particularly where the sender has obtained the address by indiscriminately taking them from the web, a public directory such as Yellow Pages or from other sources such as classified advertisements.
You may think about purchasing a contact list of potential clients, however, it is still your responsibility to ensure consent has been obtained for each contact on the list.
If you are already aware of The Spam Act, you may also need to check your current email campaign list to ensure the contacts are still relevant and up to date. For example, if you had inferred consent from a client you frequently dealt with in the past, but have not done any business for more than 2 years, you may want to reassess whether you still have a strong business relationship with them to support the inferred consent or confirm with them for an express consent.
If the above information is new to you, you may need to check whether consent has been obtained for all the contacts on your email campaign list. If you haven’t, you may want to give them a call, or ask them to subscribe on your website or seek written confirmation from your contacts. However, you can’t send an email to them to ask for consent before you obtain the consent.
If it’s hard for you to obtain consent for all your contacts on the email campaign list, you may need to expand your current digital marketing strategy by publishing your newsletters and commercial information on social media and actively participating in social networking events. You may also want to include or add links to your websites or other digital contents to make it easy for readers to subscribe. You can also identify a list of VIP potential clients list and publish relevant and interesting digital contents, such as blog, in their digital network to obtain attention and subscriptions from them.
Business regulations are not created to stop business promotion, but to encourage good business practices. For more information regarding best practice in digital business strategies, please contact Manny Vassal - Client Director
Australian Communications and Media Authority v Clarity 1 Pty Ltd,  FCA 1399
ACMA FS 161 – February 2010
ACMA submission to the Spam Act review, 2006