The Act provides the following at section 16:
“A person must not send or cause to be sent a commercial electronic message (including SMS or email) that has an Australian link and is not a designated commercial electronic message, unless the recipient has consented to doing so.”
An electronic message is defined in section 5 as:
“(1) For the purposes of this Act, an electronic message is a message sent:
(a) using:
(i) an internet carriage service; or
(ii) any other listed carriage service; and
(b) to an electronic address in connection with:
(i) an e-mail account; or
(ii) an instant messaging account; or
(iii) a telephone account; or
(iv) a similar account.”
As such, an electronic message includes, primarily, messages sent by email and SMS. Section 6 of the Act defines further a “commercial electronic message”:
“(1) For the purposes of this Act, a commercial electronic message is an electronic message, where, having regard to:
(a) the content of the message; and
(b) the way in which the message is presented; and
(c) the content that can be located using the links, telephone numbers or contact information (if any) set out in the message;
it would be concluded that the purpose, or one of the purposes, of the message is:
(d) to offer to supply goods or services; or
(e) to advertise or promote goods or services; or
(f) to advertise or promote a supplier, or prospective supplier, of goods or services; or
(g) to offer to supply land or an interest in land; or
(h) to advertise or promote land or an interest in land; or
(i) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
(j) to offer to provide a business opportunity or investment opportunity; or
(k) to advertise or promote a business opportunity or investment opportunity; or
(n) to assist or enable a person, by a deception, to dishonestly obtain a financial advantage from another person; or
(o) to assist or enable a person to dishonestly obtain a gain from another person; or
(p) a purpose specified in the regulations.”
2. Is from a government body, political party or charity; or
3. Is from an educational institution.
Most commercial electronic messages will fall outside the definition of a “designated commercial message” for the reason that its primary intent is to market goods or services to an existing or prospective customer.
It seems then that senders of commercial electronic messages must rely on the last element of section 16: “…unless the recipient has consented to doing so.” This means that if the recipient of the commercial message has consented to receiving the message, then the sending of the commercial electronic message does not contravene the provisions of the Act.
The Act provides as section 2 that consent can be given expressly, or implied:
“For the purposes of this Act, consent means:
(a) express consent; or
(b) consent that can reasonably be inferred from:
(i) the conduct; and
(ii) the business and other relationships;
of the individual or organisation concerned.”
Express consent applies where a person has specifically requested messages from you, such as if they have subscribed to your electronic advertising mailing list, or they ticked a box consenting to receive messages from you, or they have personally requested these messages be sent by you.
Inferred consent can be established from an existing relationship. Assuming that no express consent has been given, consent can be inferred in a number of situations. Some examples provided by the Australian Communications and Media Authority (“the ACMA”) are:
The ACMA has ruled that consent can reasonably be inferred from a relationship where a person has purchased goods or services which involve an ongoing warranty and service provisions. However, one-off purchases where there is no warranty or continuing relationship are less likely to infer consent to the receiving of commercial electronic messages.
In sum, it is important to understand how the addresses intended for the sending of commercial electronic messages are gathered by the sender. When collecting personal information from a customer it would be advisable to include an option or a “tick box” which “I consent to receiving updates about [Company] and [Company’s] products from time to time” or something of a similar nature. This rules out any propensity for the misunderstanding of implied consent and thus greatly reduces the chance of a breach of the Act occurring.
Alternatively, ACMA provides that your business may send a message to the address, requesting confirmation that messages should be sent there in future. The message should contain a 14 day period for a response to be received from the recipient. If the addressee does not respond within that time, they should be removed from the contact list.
However, even if consent is provided, a commercial electronic message must follow two further guidelines. Section 18 of the Act provides that the commercial electronic message must contain a functioning unsubscribe facility. The facility needs to be easily visible and simple to use, with wording such as “click here to unsubscribe”. The withdrawal of consent will take effect after five days and email addresses should be removed after this time. The customer should not be required to log in or create an account or go through any process to unsubscribe from the emails.
Section 17 of the Act provides that commercial electronic messages must contain details of the sender and contact details for the sender. The business that is responsible for sending the message must be easy to identify. Details which should be contained within the message are:
1. Business name;
A business that is found to be in breach of the Act may be subject to a Court imposed penalty of up to $220,000 for a single day’s contraventions. If, after that finding, the business contravenes the same provision, they may be subject to a penalty of up to $1.1 million.
