The laws that apply to sending unsolicited marketing emails are about to change. Businesses that marketing emails must review the way they collect consent from potential customers. These new rules will be the biggest shake up to spam and privacy laws in a long time.
We’ve written about the Spam Act rules and privacy policies. But these new laws will modify the way that businesses must engage in e-marketing activities. Australian businesses must take notice and comply with the laws or face hefty legal penalties.
In this article, our eCommerce lawyer will explain what the new rules look like and what businesses can do to start preparing for these changes.
There are pending changes to the Australian Spam Act aimed at strengthening compliance and enhancing consumer protection. These updates reflect the ongoing efforts to address issues related to unsolicited communications, especially in the context of evolving digital marketing practices.
There are currently two Bills being considered by the Australian Parliament:
We’re not going to talk about unsolicited political communications in this article. You might be wondering what the Privacy Act has to do with the Spam Act. It’s important to know that these laws overlap.
The Spam Act itself isn’t expected to be changed. However, the new rules around email marketing and consent will be found in the revised Privacy Act.
The regulator in this space is the Australian Communications and Media Authority (ACMA). ACMA has issued a Statement of Expectations for 2024-25. In that statement they said that they expect businesses to:
The types of marketing emails that will be caught by the Spam Act will be broader. It is likely to expand to include emails with indirect commercial intent. For example, promotional links in order confirmations.
ACMA has pointed out that businesses try to disguise commercial messages as non-commercial to bypass spam rules. For example, where a business needs to communicate to a customer to provide goods and services but includes some marketing content in the email.
Businesses may be required to adopt a double opt-in process. This means that businesses will need to change the way they obtain consent to receive commercial electronic messages (i.e. marketing emails).
To do this, businesses will need to work with their web developers. Consent may be obtained when a person initially signs up, but there must be an additional step. The person would then receive a confirmation email or message requiring them to confirm that they want to subscribe.
Businesses will be required to process unsubscribe requests within a maximum of five business days.
Businesses will be unable to play the blame game. Businesses will themselves be responsible even if they engage another company to assist with digital marketing. Outsourcing will not help businesses avoid legal responsibility.
Set out below are some reasons given by various media bodies and Government authorities regarding the changes to e-marketing:
Not currently. However, double opt-in will be required if the email marketing laws change in the way that they are expected to.
Currently, the penalties are:
Under the new laws, these are expected to increase significantly. There is talk of a tiered penalty system so that the more serious the breach, the greater the penalty.
Yes, and more businesses are being targeted by regulators.
Here are two recent examples of businesses being penalised by ACMA.
You can speak to one of our eCommerce lawyers if you have questions about the new laws. We offer a free 15 minute legal consultation and fixed fee pricing.
Contact us for a free consultation
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