As published in CK Momentum Issue 6 (Click here to download)
While unwelcome emails advertising phoney products sent en masse are illegal, you may be surprised to learn that even a well intentioned marketing campaign can fall foul of the Spam Act (“Act”). A message does not necessarily have to be sent out in bulk to be considered spam. A single message may be considered spam if it was unsolicited.
Corporate & Commercial Lawyer Suzette Caldaroni explains what “spam” encompasses and suggests some steps to help ensure your marketing campaign doesn’t breach the Act.
WHAT IS SPAM?
Spam is simply an “unsolicited commercial electronic message”, typically an email or SMS message. If even one of the purposes of an electronic message is to advertise or promote, it is a “commercial electronic message” (“CEM”). Content that is accessible using any links or other information contained in the message is also taken into account. Therefore, anything short of a purely factual message is likely to be a CEM.
A CEM is “unsolicited” (and, therefore, spam) if it is sent without consent. Consent needs to be provided by the accountholder to which the CEM is sent. While it is always best to obtain the express consent of the relevant accountholder, consent may be inferred in one of 2 circumstances:
- where there is a pre-existing relationship and the recipient would reasonably expect to receive the message; or
- through the conspicuous publication of an electronic address – eg a person will be taken to have consented to receiving CEMs to their published email address if that message is directly related to their employment, unless they post a clear notice that they do not wish to receive such emails.
HOW TO ENSURE YOUR MARKETING CAMPAIGN IS NOT SPAM
- HAVE AN OPT IN PROCESS so an individual must confirm they wish to receive emails or SMS messages before they are subscribed to a mailing list – eg a tick box on a website or form.
- HAVE AN OPT IN PROCESS so an individual must confirm they wish to receive emails or SMS messages before they are subscribed to a mailing list – eg a tick box on a website or form.
- KEEP RECORDS. This is particularly important if consent is given verbally. The sender of a CEM is responsible for proving there was valid consent.
- ENSURE EVERY CEM CONTAINS A FUNCTIONAL “UNSUBSCRIBE” FACILITY, SENDER INFORMATION AND CONTACT DETAILS. These are mandatory requirements under the Act.
- ENSURE THERE IS A CLEAR CONNECTION between what you are promoting and the recipient’s role or business before sending a CEM to an address published on the internet.
- CONDUCT DUE DILIGENCE before purchasing a mailing list to use for marketing purposes. It is not illegal to purchase a mailing list if the addresses have not been obtained using address harvesting software. However, it is a breach of the Act if the necessary consent was not obtained from each accountholder on the list. Having contractual protections such as warranties in relation to consent would be prudent, but is unlikely to be sufficient to avoid liability under the Act.
