SPAM Act what is consent

SPAM Act what is consent

In this article I discuss how “permission” or as it called in the statute “consent” is now legally required in Australia.

This article contains a condensed description of the Australian SPAM Act. Of course we don’t hold ourselves out as experts on the law.  You should seek your own independant advice on your particular circumstances.

This article was contributed by Kevan Baker from mail2grow. Kevan’s contact details can be found at the end of the article.


Any commercial electronic message you send must have been sent with the prior consent of the recipient. If this condition is not met, the message is classified as spam.

The consent condition is also referred to as the ‘opt-in’ condition.

There are two possible types of consent that may apply:

  • The recipient may give their express consent; or under certain circumstances,
  • Their consent may be inferred from their conduct and ‘existing business or other relationships’

In any case, a message recipient can withdraw their consent simply by unsubscribing, or by contacting your business and asking you not to send you any further messages. This request must be honoured within a specified time limit (see the ‘Withdrawal of consent’ section at the bottom of this page).

Express consent (Opt-in)

Examples of situations where a person may have given their express consent to receiving commercial electronic messages from your business include instances where:

  • The person has specifically requested such material (either verbally or in writing) from your business
  • The person has voluntarily added their electronic address to a mailing list compiled by your business, where it is clearly understood that future commercial electronic messages may be sent to that person’s electronic address
  • The person has voluntarily given their electronic address to your business over the telephone or in writing, where it is clearly understood that you may send future commercial electronic messages to that address
  • The person has voluntarily entered into an agreement with a third party to have their electronic address provided to your business to use for marketing purposes

Inferred consent

Under certain circumstances, consent to receiving commercial electronic messages from your business may be inferred from a person’s conduct and ‘existing business or other relationships’.

This ‘inferred consent’ generally falls into two categories: where a work-related electronic address has been conspicuously published; or where a pre-existing business relationship exists. Note that conditions apply in both cases, as outlined below.

Conspicuous publication of a work-related address

A person’s consent to receiving commercial electronic messages may be inferred where:

  • They have conspicuously published their work-related electronic address in the public domain (e.g. on a web site or brochure), without stating clearly that they do not wish to be sent commercial electronic messages at this address and it would be reasonable to assume that the address was published with their consent. For inferred consent to apply, the commercial electronic message must be directly relevant to their work.

Note here that:

  • A person’s consent to receiving commercial electronic messages can not be inferred from the mere fact that they have published their electronic address on a web site
  • A person’s consent can not be inferred if their work-related address is published conspicuously in the public domain, but is accompanied by a message stating that they do not wish to receive commercial electronic messages
  • A person’s consent can not be inferred from the mere fact that they have published their electronic address in an online environment that is not generally available to the public, for example a chatroom or subscriber web page
  • A person’s consent can not be inferred from the fact that their address has simply been published in a public resource such as the Yellow Pages or the Electoral Roll

Pre-existing business relationships

In certain circumstances, a person’s consent to receiving commercial electronic messages may also be inferred where they have a pre-existing business relationship with your organisation, and as part of that relationship have knowingly given your organisation their electronic address.

Examples of when consent could reasonably be inferred from pre-existing relationships include instances where a person:

  • Holds shares in your company
  • Holds a subscription to a magazine or newspaper you publish
  • Is an account holder with your bank; a financial member of your club; a subscriber to your superannuation body, a member of your professional association, or an employer/employee/contractor of your organisation
  • Is a subscriber to a particular service you provide – for example, has a contract with your phone company; or is a registered user of an information, advisory or online service you provide
  • Is a utility/rate payer with your utility company, or relevant government body
  • Has given your business their electronic address with the expectation that it will be used in legitimate transactions and associated communications – for example online banking/online business
  • Has given your business their electronic address when purchasing a product with ongoing warranty or service provisions; and your business then sends them electronic messages related to the warranty and service of that product
  • Has handed over their business card, containing their electronic address, to a representative of your business; and your business then sends that person commercial electronic messages that are directly relevant to their work

Examples of situations where despite having a pre-existing relationship with your business, a person’s consent to receiving commercial electronic messages from you can not be inferred include instances where they have merely:

  • Bought a tee-shirt or groceries from a business that you own, work for, or otherwise have a commercial interest in
  • Attended a concert, performance or movie that your business has managed, marketed or otherwise has a commercial interest in
  • Used a brand of ubiquitous software your company manufactures, sells or markets
  • Made a purchase or transaction from your business as an anonymous entity

Withdrawal of consent (Opt-out)

A person can withdraw their consent to receiving commercial electronic messages simply by contacting your business and stating that they no longer wish to receive such messages.

Under Australian law, all commercial electronic messages must now have a functional ‘unsubscribe’ facility: see Spam – Business information: ‘How can I avoid sending spam? A person who wishes to withdraw their consent, i.e. does not wish to receive any further electronic messages from your business, can simply choose to use this unsubscribe function. Your business must honour any unsubscribe request within five business days.

Alternatively, the person who has received the message may contact your business by telephone or in writing to request that you do not send them any more messages.

In this case, the person’s withdrawal of consent takes effect in five business days. Under the Spam Act, your business must honour all withdrawals of consent regarding commercial electronic messages within this specified time.

 

Permission - Do you have it?

You either have it or you don’t. It really is that easy.

Having permission opens up a world of opportunity with new and existing customers that can bring you new business and open doors you never thought possible.

This article was contributed by Kevan Baker from mail2grow. Kevan’s contact details can be found at the end of the article. 

If you don’t have permission - contacts will be burned, un-subscribes will reach new and unexpected heights, and before you know it, you’ll be selling Viagra before the year is out…

So let’s look at what you have to be to earn and keep your permission.

You are honest and forthright

Remind your recipients the reason for them receiving this email. Reminding your subscribers why they joined your list in the first place will add credibility to your communication. The same is true regardless of whether they are a prospect that expressed interest, a client you want to keep in touch with or one of your treasured clients, it puts the email into some kind of context for them. This serves to differentiate your communication from their unwanted mail.

You are reliable

Allow subscribers to receive exactly what they want to hear about. Depending on the size of your list or product/service you may communicate separately on a number of different issues. The point is, if you offer it, deliver it. After all not delivering on your promises isn’t going to throw a bad light on your business is it?

It really comforts subscribers to know when they ask for your Friday Club News that they will not hear about Saturday or Sunday. More importantly that they actually receive it in time to use it i.e. before Friday!

You are specific

Be about who you are and what address your email is coming from. You may want to let subscribers know what your emails will look like in the “From:” and “Subject:” line so that they will be expecting you.

You are respectful

Permission is given. Treating your subscribers without respect will ensure it is taken away.

Always add to every email an easy means for your subscriber to opt-out or unsubscribe. Your audiences’ interest will change over time and at some point, even your most loyal supporter may decide what interested them 12 months ago, no longer interests them now. But remember as some subscribers fall off the perch, a greater number of new ones will arrive on it.

Subscribers are entitled to withdraw their permission at will.

You are trustworthy

Your privacy policy is your guarantee if you like, of your respect for others privacy. It should be taken seriously and put into real practice. It should be clearly listed on your site and on your email also. It adds credibility to your company and your email, even if recipients do not click on the link.

You are interested

Do you provide value? Are you sending too many emails or maybe not enough? An electronic survey is a great way to get feedback from your customers on how they feel about your company and your level of communications. Do not be afraid to engage a professional to assist you in writing your survey. They will see issues you may have no clue about. Do not waste the opportunity. Learn as much as you possibly can from it.

As permission-focused marketers, we are all waiting for a final solution to SPAM. So far there is no fool proof answer available. So my friends, remain diligent and remember, if you are not part of the problem you are part of the cure!

Keep your info current

People change. People also change their internet service provider, jobs and email addresses. They find it hard enough to tell their friends and I’m sure you will be the last to know. Always keep a prominent area available in your email and website so that subscribers have an easy way to change their details. This ensures that your emails will continue to be received and if they have changed their preferences you will continue to provide valuable information to them. It’s important you target the right audience with the right campaign.

Always be considerate

Remember to respect the privilege of communicating to new and existing clients. Take care not to do this too often. Carefully plan how many emails you send to your list and the kind of information you’re sending.

As a rule never more than once a week. Of course it does depend on your business; if you are providing a daily weather bulletin maybe once a week will not work. Every audience is different so base your communication frequency and type based on your list.

Remain diligent

You will always get some subscribers who will send you an email rather than click the automatic link. You will have people that are subscribed more than once under different email address, who will blow up because they get another email after unsubscribing from the other email address. Remove all unsubscribe requests immediately, do not waste your time sending them instructions on how to unsubscribe using the link, just do it and take action on any other grievances immediately.

Be observant

Always check your reports. It’s like standing over a big cross on a desert island with a shovel in your hand! There is a literal treasure chest of information lying just underneath. Pay close attention to your unsubscribe rate and make sure that your churn rate remains positive. If you are losing more than 5% of your list a month, check out all your campaigns, go through each element and tweak areas that are not receiving click through or you believe are falling short.

Take warning

The CD you just bought off a bloke down the pub with two million email addresses on it is no good – permission is not transferable, it has to be earned! These lists or offers like “Blast your advert to 5000 opt-in email addresses for just $10” sound too good to be true, because they are!

Generally these lists have been grabbed of the internet and sold to “wanna be” spammers who will no doubt be sending viagra offers to shortly.

So permission eMarketers, go forward and spread the good word and be part of the cure!

 

The Australian eMarketing Code Of Practice 

Did you know that Spam is expected to globally account for approximately 40% of all email delivered this year? This will contribute an amazing $4 a month to everyone’s monthly internet bill!

This article was contributed by Kevan Baker from mail2grow. Kevan’s contact details can be found at the end of the article.

Did you know that Australia (or Australian based spammers) are RESPONSIBLE for 16% of the world’s SPAM?

So thinking about sending an ad to someone whose email address you found on someones website? Think again!

The maximum daily penalty is $1.1million for companies, and $220,000 for individuals, and anybody “knowingly concerned” in a violation is liable.

That’s the SPAM Act. So what is the eMarketing code of practice?

The Australian eMarketing Code of Practice: March 2005 (the code) establishes comprehensive, industry-wide rules and guidelines for the sending of commercial electronic messages (CEMs) in compliance with the Spam Act 2003.

The code also provides a framework by which industry can handle complaints about spam and monitor industry compliance with code provisions.

The code was developed under section 112(1A) of the Telecommunications Act 1997 by a committee made up of representatives from peak industry associations, consumer groups, message service providers, government regulatory agencies and corporate business.

The code was developed in accordance with the Government’s policy that industry bodies, or associations representing sections of the e-marketing industry, should develop codes of practice that apply to the e-marketing activities of industry members.

On 16 March 2005, the former ACA registered the code under section 117 of the Act with the effect that compliance with the code is mandatory and enforceable by the Australian Communications and Media Authority (ACMA).

For further detailed information;

 

 

 

 

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