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Australian Email Marketing Laws – What Are The Rules?

Australian email marketing laws govern when businesses can send marketing emails and specify the type of consent needed. Australian law permits businesses to send unsolicited emails if they meet certain criteria.

Email marketing is a powerful marketing strategy that adds value to your customers and may increase sales. It helps position your business as the leading expert in the industry. It also allows your existing and potential customers to get to know you better and trust your brand more.

Moreover, email marketing facilitates a high rate of conversion, which means increased revenue generation. However, at times, your efforts to reach potential customers can run the risk of breaching the law.

Australia has strict laws that govern marketing emails and spam; it is important to comply with them. Legal consequences exist for failing to comply with email marketing laws and the Spam Act.

That is why you need to understand the laws that apply to email marketing. You need to ensure that your marketing campaigns do not:

  • breach the Spam Act
  • contain content that is misleading or deceptive
  • breach the Privacy Act

In this article, our eCommerce lawyer will discuss the legal rules for email marketing in detail.

Key Takeaways

  • businesses need to have a functioning ‘unsubscribe’ feature in their email marketing
  • once customers have unsubscribed, you can send them emails necessary to provide goods or services they have signed up for
  • consider whether you have implied consent from your customers or if you need express consent
  • harsh penalties apply for breaching the Spam Act
  • speak to an eCommerce lawyer if you’re not sure if the emails comply with law
australian email marketing laws

Email Marketing Laws Australia

‘Spam’ is the commonly used term for promotional emails sent to those customers who have not requested them. The legal term for spam is an unsolicited commercial electronic message. If your business practices email marketing, you must comply with the Australian Spam Act.

Marketing campaigns frequently reach large audiences or utilise platforms like Mail Chimp. This makes it particularly important for businesses to understand the legal rules for email marketing.

In Australia, the relevant law is the Spam Act 2003 (Cth). The Spam Act governs when and how businesses can engage in email marketing. If you do not meet specific requirements, the Spam Act can prohibit you from sending out electronic messages where:

  • there is a connection to the country of Australia
  • one of the purposes or the primary purpose of the message is commercial (i.e. to make money)

I will explain each of these points below.

Australian Link

Certain criteria consider an email, text, or WhatsApp message an ‘Australian link’. These criteria relate to the content of the message.

  • the message originated in Australia
  • if someone within Australia controls the sender or has authorised the message to be sent. For example, the person is physically present or has management in Australia when the message was sent
  • the computer, server or device that is used to access the message is located in Australia
  • the electronic account holder is physically present in Australia or the organisation carries out business activities in Australia when the message is accessed
  • if the message cannot be delivered because the address no longer exists, it is reasonably likely that the message would have been accessed using a computer, server or device in Australia

Commercial Message

Commercial messages are those sent for one of the purposes set out below.

  • offering to supply goods or services
  • advertising or promoting goods or services, or
  • advertising or promoting a supplier of goods or services

The presentation of a message, its content, and accessibility through links typically determine this.

The Spam Act applies even if the message is not mainly for commercial purposes but for another reason.

The Legal Rules for Email Marketing

The Spam Act in Australia stops businesses from sending unwanted emails that invade people’s privacy. The Spam Act works hand in glove with the Privacy Act, which deals with the collection and use of personal information.

That is why, if you are an email marketer, you must be aware of the 3 legal rules for email marketing.

The rules are that you:

  • must get the express or implied consent from email recipients
  • identify that you are the sender and include contact information
  • include a working unsubscribe link in the email
Farrah Motley holds degrees from the Queensland University of Technology in both law and accounting. Farrah is a registered Australian Legal Practitioner and has been pracising employment law for over a decade

Get Consent from Recipients

You must first get the permission of your customers to send them email marketing. This consent can be:

  • express, such as when a customer ticks a box saying “I consent to receiving marketing communication”, or
  • implied based on your relationship with your customer or their conduct. This is also known as inferred consent.

For example, when customers tick a box to receive emails from your business, we refer to it as express consent. This means the customer agreed to receive email marketing by entering their email and clicking ‘subscribe’.

However, whether your customer has agreed to receive email marketing will depend on the situation. You need to assess your relationship with your customer. Think about whether a reasonable person would think the customer has agreed to get email marketing without saying so.

For example, a gym might assume that a member would like to get messages about the gym. In either case, you must keep a detailed record of when and how you obtained the consent of those customers in your email list.

What is the best practice when obtaining consent?

Clear and Concise Language

When seeking consent for electronic communication, it’s essential to use clear and straightforward language. Explain the nature of the communication recipients opt for and specify how often they can expect to receive messages. Transparency builds trust and helps recipients make informed decisions about subscribing.

Opt-In Boxes

Make the process of opting in deliberate and explicit. Avoid pre-checked boxes or hidden opt-in clauses that might automatically enrol recipients without explicit consent. Recipients should actively and consciously choose to opt in to receive communications.

Double Opt-In

Consider implementing a double opt-in process for additional security. After the initial opt-in, send a confirmation email asking recipients to verify their intent to subscribe. This additional step ensures that the recipient genuinely wishes to receive communications, enhancing the validity of consent.

Correctly identify that you are the sender

To comply with the Spam Act, commercial electronic messages must:

  • identify who the sender is, and
  • include contact details for the sender

The emails you send to your customers must contain sender details so that recipients can contact you. Include your trading name and contact info (phone, address, email) in every message you send. You can either use your name and ABN or the correct legal name of your business.

The information must be easy to find, clear, and accurate for at least 30 days after sending it.

Otherwise, you might end up breaching the Spam Act. If a marketing agency sends emails on your behalf, ensure the agency correctly identifies your business as the sender.

Include a functional unsubscribe link

The Spam Act 2003 says businesses must quickly handle unsubscribe requests from people who get commercial emails.

You must always provide the recipients of your promotional emails the option to opt out at any point in time. In addition, you must include a clear and straightforward way of unsubscribing from your emails.

An eCommerce lawyer can provide expert guidance on unsubscribe features and requirements.

Mandatory Unsubscribe Mechanism

Businesses must incorporate a visible and functional unsubscribe mechanism with every commercial electronic message they send. This mechanism must be easily identifiable and functional. It should enable recipients to opt out of receiving further communications effortlessly.

Processing Unsubscribe Requests

When businesses receive an unsubscribe request, they must process and fulfil it promptly. They must delete the recipient’s data right away from the list or database that creates the commercial messages.

The opt-out option that you provide in your message must remain functional for no less than 30 days from sending the message. Moreover, you cannot charge your customer a fee for processing an opt-out. If someone asks to stop getting emails, you must take them off your list within 5 days.

Use of address harvesting software

Businesses that use address harvesting software to obtain or supply email addresses will breach the Spam Act.

This email marketing rule extends to helping someone else or encouraging someone else to do this.

Consequences of Not Complying With the Email Marketing Laws

If you do not respond to the opt-out request within 5 days, the system will mark your commercial emails as spam. It so happens because, by unsubscribing, the recipient has essentially withdrawn their consent. Therefore, you end up breaching one of the three requirements of sending a commercial electronic message legally.

If your recipients continue receiving emails after unsubscribing, they may make a formal complaint to the Australia Communications and Media Authority (ACMA). They are the regulator responsible for monitoring and enforcing the Spam Act 2003 (Cth).

ACMA has the power to carry out the following steps if they find out there has been a breach of the Spam Act:

  • give formal warnings
  • issue infringement notices
  • take the matter to the Federal Court, which can impose significant penalties
  • seek injunctions from the Federal Court
  • accept undertakings from the sender

Penalties of up to $2.22 million per day apply to repeat offenders who send two or more promotional messages in a day without consent.

Exceptions to the Email Marketing Laws

Two types of promotional emails are partially exempt from the law prohibiting spam email marketing. However, for both these types of emails, you still need to comply with the identity requirement.

Factual emails that are not promoting goods or services

1. Completely factual emails that do not contain any commercial material. Hence they do not require meeting the consent and unsubscribing requirements. Such emails include messages that:

  • advise the recipient and are not commercial
  • offer a price/quote to the customer
  • provide a product description to the customer
  • are sent for the genuine safety of the recipient
email marketing law australia

Permitted organisations

Emails from permitted bodies that are exempt from the Spam Act. These organisations may include educational institutions, registered charities, government bodies, or registered political parties.

To reach your sales goals, sending multiple emails can help, as long as you’re not spamming people.

This is because, in email marketing, it is never a good practice to send two or more emails in a day. However, in case you are, be sure to comply with all the existing email marketing laws.

Frequently Asked Questions

Is it illegal to send marketing emails?

Sending marketing emails is not illegal if you comply with the Spam Act.

If you get a spam message, you should first contact the sender or unsubscribe. You may wish to report the matter to the ACMA. They will check and verify the sender if they broke the Spam Act.

Yes, the Spam Act specifically targets commercial electronic messages. Non-commercial messages, such as those for charitable or educational purposes, may not be subject to the same requirements.

Maintain accurate records

Keeping accurate and comprehensive records of consent obtained is critical to demonstrating compliance.

Provide the date and explain how you got the information, like filling out a form online or signing in person. Lastly, specify the content or type of consent given by the person who received it.

Keep records accessible

Records must be easily accessible. They must be in ‘ready to view condition.’ Easily accessible records make it easier to demonstrate compliance if regulatory inquiries or audits occur.

Secure Storage

Securely store consent records to protect the privacy and confidence of the information. Safeguard these records from unauthorized access or breaches by implementing robust data security measures.

The Spam Act in Australia serves a dual purpose, driven by two primary legislative objectives:

  1. Regulating unwanted Electronic Messages for Commercial Purposes
  2. Establishing a Framework for Responsible and Ethical Communication

Regulating unwanted Electronic Messages for Commercial Purposes

The Spam Act controls and oversees the sending of unwanted promotional electronic messages. It specifically targets messages that attempt to sell products or services.

The goal is to reduce the amount of unwanted messages that businesses send to advertise their products or services. The law wants to lessen the bad effects and harassment from unwanted messages by setting rules and guidelines.

Establishing a Framework for Responsible and Ethical Communication

Beyond regulation, the Spam Act aims to establish a broader framework that promotes responsible and ethical communication practices. It establishes guidelines and standards for businesses engaging in electronic communications and emphasises the importance of obtaining consent from recipients before sending commercial messages.

This framework promotes transparent, respectful, and trustworthy communication between businesses and individuals. By emphasising responsible practises the Spam Act aims to build trust and credibility in electronic communication channels.

About the Author

Farrah Motley
Director of Prosper Law. Farrah founded Prosper online law firm in 2021. She wanted to create a better way of doing legal work and a better experience for customers of legal services.

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