Targeting the masses – clever marketing or just spam?

As electronic marketing increasingly supersedes traditional communication methods, businesses must be wary of the line between marketing and spam – or face substantial fines.

The Spam Act 2003 imposes strict parameters on commercial use of email and other electronic messaging methods. Enforced by the Australian Communications Authority (ACA), the Act has given rise to major court proceedings such as The Australian Communications and Media Authority v Clarity1 Pty Ltd in late 2006. Clarity 1 sent an estimated 270, 305, 474 messages which resulted in 79 complaints from receivers. The result? The Company was ordered to pay $4.5 million and the Director an additional $1 million in damages.

So what constitutes Spam?

Spam consists of an “Electronic Message” that is commercial in nature: as such even a single message may be constituted as Spam.

Under the Spam Act, businesses must ensure they follow the following minimum guidelines:

Consent

Messages may only be sent when there is either express or implied consent from the receiving party.  Implied consent may be inferred when there is an existing business arrangement with the receiver, where the receivers’ contact details are published in the public realm or when they have provided a business card or other information releasing their details.

Identity

The email or message sent should contain clear and accurate information as to the sender’s identification.  The contact information in the message needs to be valid for a period of 30 days after the message is sent.

Unsubscribe

A message must contain a functional unsubscribe facility so the sender has the option to opt out of receiving any future correspondence.  This function must also remain active for a period of 30 days.

In enforcing the Spam Act, the ACA may take action ranging from issuing a warning notice to imposing maximum penalties of up to $220,000 ($44,000 for individuals) for the first contravention for a single day. Repeat offenders will be dealt with harshly, facing a fine of up to $1.1 million per day (or $220,000 for individuals).

As electronic marketing becomes more common and consumers are bombarded with messages, they are likely to hit the delete button before reading any content. As such, to make marketing efforts both worthwhile and legally compliant, it is essential that recipients are both properly qualified and willing to receive the message.