In recent years, Australian businesses have frequently been targeted by hackers, leading to leaks of users’ personal information. Legislation and regulation around personal data privacy have become a national hot topic, and this has also made spam email more prevalent. It is not uncommon to receive a dozen or more marketing emails from different companies each day, and the build-up of these messages can cause us to miss important emails. In this article we focus on how businesses should set up a lawful marketing email system.

What is spam?

“Spam” generally refers to electronic messages used for commercial promotion or that you did not wish to receive. However, under Australian law, spam also has a specific legal meaning. The relevant Australian legislation on spam is the Spam Act 2003. Unless a business can satisfy certain requirements, the law prohibits businesses from sending electronic messages where the following apply:

An Australian Link*

The message is sent for a commercial purpose, such as offering and promoting products or services

*Under the statutory definition, as long as the message originates from Australia or the sender is an Australian entity, the link is an Australian Link. The forms of message covered include email, SMS and messages sent through any other communications software, such as WeChat or WhatsApp.

If a message contains only a payment reminder or a product-fault notice, it is not spam. In addition, telemarketing (telecommunication) does not fall within the definition of spam. If you do not wish to receive such calls, you can register on the “DO NOT CALL REGISTER.”

When is a marketing message from a business lawful?

1. Your consent

First, the recipient must allow the business to send them commercial electronic messages. There are two ways for a business to obtain your consent: you give it expressly, or it is inferred from your conduct. There are many ways a business can prove your consent; the most common is that you may have unintentionally ticked a relevant option on a sign-up page — particularly in situations where we do not pay close attention to the wording of such options when filling in our personal information.

A business may also infer your consent from your conduct. If your behaviour gives the business reasonable grounds to believe that you expect to receive marketing emails, or you voluntarily provided your email address, the business may draw such an inference. For example, if there is an ongoing relationship between you and the business, and that relationship is closely connected to the content of the marketing, the business may also reach this inference. It is important to note, however, that a business cannot send you marketing emails simply because you purchased a product or service once.

2. Clearly identify the sender

In a marketing email, the business must clearly disclose its details, including the business name and ABN, as well as its contact information. This information must also remain valid for at least 30 days after the message is sent.

3. An unsubscribe link

The Spam Act requires businesses to make unsubscribing straightforward, including:

Clearly indicating where the unsubscribe link is located

Honouring unsubscribe requests within 5 business days

Not requiring the recipient to pay any fee

Keeping the unsubscribe link valid for at least 30 days after the email is sent

The unsubscribe process must not require the user to provide additional personal information, for example requiring the user to log in to an account to complete the unsubscribe

In addition, the unsubscribe wording in the email must be expressed in plain language, for example:

To stop receiving messages from us, simply reply to this email with ‘unsubscribe’ in the subject line.

If you no longer wish to receive these messages, please click the ‘unsubscribe’ button below.

If a marketing email does not include an unsubscribe link, you can lodge a complaint with the Australian Communications and Media Authority (ACMA). In July 2020, ACMA penalised Australian supermarket giant Woolworths up to $1,003,800, finding that it had sent marketing emails to five million users who had already unsubscribed. In addition, in January 2021 ACMA issued a breach warning of $310,800 to online retailer Kogan, finding that the business had designed the unsubscribe process to be overly complex.

Final thoughts

Email is an important tool for Australian small and medium businesses to communicate with their customers. If, as a business, you wish to use email for marketing, you must comply with the applicable law — and in our view legal compliance is only the minimum commercial requirement. You need to design an email format that suits your customers. If you have related questions or needs, our solicitors can review the compliance of your electronic marketing for you.