In September 2012, the Australian Communications and Media Authority (ACMA) issued formal warnings to two Australian businesses for their failure to comply with the Spam Act 2003 (Cth) (the Act).
This serves as a timely reminder to Direct Selling Organisations (DSOs) to ensure that the electronic messages they (and their salesforces) send comply with the Act.
In issuing formal warnings under section 41 of the Act, ACMA concluded that both businesses, Aussie Web Tech Pty Ltd and My CRA Pty Ltd, had sent marketing messages to consumers which did not include details as to how recipients of the messages could unsubscribe.
The Act prohibits the sending of unsolicited, electronic messages which are commercial in nature. Modes of communication covered by the Act include email, instant messaging, SMS and MMS. The sending of faxes and voice telemarketing are not regulated by the Act. Commercial messages are any that offer, promote or advertise businesses and/or the supply of products, services or business opportunities. Furthermore, messages which contain, for example, links to commercial content will also be considered commercial in nature.
Companies who are repeat offenders in breaching the Act may be subject to penalties of up to $1.1 million per day.
What do I need to do to comply?
DSOs and members of their salesforces who conduct electronic marketing activities must ensure they comply with the three principal requirements of the Act, namely:
- Consent: The recipient must have consented to the message being sent. This consent may be express or inferred. (This would be the case if the sender already has a business or personal relationship with the recipient, for example, by being a member of the sender’s downline.)
- Contact Information: The sender of the message must ensure their contact information is contained in the message.
- Unsubscribe Facility: The message must contain an unsubscribe facility which the recipient can use to opt out of receiving future messages.
What is an unsubscribe facility?
To comply with the Act, DSOs and their salesforce must ensure that the unsubscribe facility they use is:
- easy to understand and use;
- operational for a minimum of 30 days after the message is sent; and
- able to be used by recipients at no cost or minimal cost.
Unsubscribe Facilities: Examples
ACMA notes on its website that unsubscribe facilities in electronic marketing messages may include statements such as the following:
- “If you no longer want to receive messages from us, simply reply to this email with the word ‘unsubscribe’ in the subject line (email)”;
- “If you no longer want to receive these messages, please click ‘unsubscribe’ (email)”;
- “Unsub: reply Stop (SMS)”; and
- “To opt-out, call 1800 xxx xxx (SMS)”.
Hopefully, an unsubscribe facility is included consistently in each of the electronic marketing messages your company sends. However, do your unsubscribe facilities meet the requirements of the Act? If not, you should ensure that they do prior to sending any further electronic marketing messages. You may also consider it prudent to remind your salesforce of their obligations under the Act.
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