Online marketing or spam?

The Spam Act has been in existence since December 2003. And most people know that to send “spam” (or “electronic commercial messages” as they’re technically known) you have to have consent and provide the ability to unsubscribe. But there are a few tips and traps that aren’t as commonly known.

Online marketing can be cheap – just build up a huge email list and away you go. But how do you build up that email list without paying money for it?

A common trap is to run a “friends and family” referral campaign. You know, the sort where you encourage existing supporters/members to give you their family and friends’ email addresses. As clever as it sounds, that type of approach will leave you open to all sorts of legal traps.

So, let’s look at the three key conditions for all commercial electronic messages:

• Consent. This has to come from the owner of the email address. That’s why a friends and family referral campaign could have the Feds knocking at your door, fine in hand. Consent can be in the form of a “tick the box” to agree or, if you make it obvious, an “untick the box” to disagree to receive advertising messages may also suffice. Consent can be given online or in paper form. The use of a confirmation email will ensure that the consent is coming from the owner. But you can’t send an unsolicited email seeking consent, so you may have to infer it.

Consent can be inferred from circumstances such as, an existing business relationship or by the recipient conspicuously publishing contact details. So, if someone gives you their business card with an email address, it can be inferred that they agree to receive relevant commercial messages from you. Similarly, publishing contact details on a website can be taken as consent to receive commercial messages that are relevant to that person or business. For example, if a builder publishes its email address online, it will be acceptable to email offering work or to sell building materials, but not to sell pharmaceuticals.

If you publish your electronic address and don’t want to receive commercial messages, include a note that indicates that you don’t consent, eg. by writing “no advertising”.

• Identify. This is pretty straightforward. You have to identify the business sending the commercial message. What is less known is that you must also include contact details that will be current for the next 30 days. The type of contact details aren’t specified, so it could be a street address, phone number or email address. What’s important is that it leads to someone in your organisation.

• Unsubscribe. A working unsubscribe facility is also essential. Once somebody notifies you that they unsubscribe they are withdrawing their consent and you have five days to stop sending them commercial messages.

Sounds simple enough. And yet some large companies like Coca-Cola South Pacific, Vodafone Hutchison Australia and MYOB Australia have fallen foul of the Spam Act.

After all that, what’s a commercial electronic message? Well, it’s any message sent by email, SMS, MMS or Instant Messaging that offers to supply, advertises or promotes goods or services or suppliers of goods or services; land; or business and investment opportunities.

But here’s a tip – any message that is purely factual, ie. doesn’t offer to supply, advertise or promote, will not be considered spam. So, offering to catch up with that business contact you made at the last conference won’t be considered spam.

Most importantly, if you breach the Spam Act, you will have evidence of your breach and it is an offence to destroy/delete/dispose of evidence that may be required for a court case. But more about that next time.

Please note that this information is a basic summary for general guidance only. It is not a substitute for professional legal advice.

Piquet Kruzas is a lawyer and experienced management trainer.  He has operated his own e-commerce retail and distribution business and brings skills from 15 years in competition and consumer law, telecommunications regulation and compliance at the ACCC and Consumer Affairs Victoria.