Marketing and Advertising
Sponsorship Agreement – 5 Tips and Tricks
A sponsorship agreement is a contract between a sponsor who is paying a fee or giving goods and services in exchange for a benefit from the sponsored party. These contracts
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:
In this article, our eCommerce lawyer will discuss the legal rules for email marketing in detail.
‘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:
I will explain each of these points below.
Certain criteria consider an email, text, or WhatsApp message an ‘Australian link’. These criteria relate to the content of the message.
Commercial messages are those sent for one of the purposes set out below.
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 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:
You must first get the permission of your customers to send them email marketing. This consent can be:
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.
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.
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.
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.
To comply with the Spam Act, commercial electronic messages must:
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.
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.
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.
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.
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.
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:
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.
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.
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:
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.
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.
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.
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.
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:
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.
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.
We provide legal advice to business and individuals across Australia, no matter which State or Territory you are located. Our easy-to-access, online legal services mean that you can talk to our lawyers wherever you are, at a time that suits you.
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