Australian Spam Act of 2003 & Regulations of 2021

Published: 21-Feb-2022
Last Updated: 09-Jan-2022
Australian Spam Act of 2003 & Regulations of 2021

The Australian Spam Act of 2003 in its entirety was passed into law in Australia in March 2004. The first portions of the Act were passed in December of 2003, the same month President George W. Bush signed the CAN-SPAM Act into law in the United States. 

The Australian Spam Act act defines spam as "any electronic message that is sent without the consent of the recipient". The act is meant to protect consumers from unsolicited commercial messages (Email Marketing Messages, SMS Messages, instant messaging on other platforms) and it is enforced and revised by the Australian Communications and Media Authority (ACMA). ACMA recently updated The Spam Act of 2003 in April of 2021.

Spammers use various techniques to disguise their identity and location. They may use fake return addresses, multiple email accounts, and even spoof IP addresses. They also use automated programs to send out millions of electronic messages per day. 

Although the Australian Spam Act of 2003 & Regulations of 2021 regulates more than commercial emails, we are going to focus on commercial emails for this blog post. 

How to Comply with Australian Spam Act Requirements

Email message displayed on mobile phone

The main principles of the Australian Spam Act of 2003 (and its 2021 updates) are consistent with other major pieces of email marketing legislation. 

The electronic message requirements for organizations under the Spam Act of 2003 and Regulations of 2021 are to identify themselves, receive permission, and include a functional "unsubscribe facility".

The act applies to all email marketers sending commercial e-mails with an "Australian link".

ACMA define commercial messages with an Australian link as messages that:

  • originate in Australia
  • are sent by a person or organization in Australia
  • are accessed by a server or person located in Australia  

As mentioned above, these requirements apply to all forms of electronic messages, not just commercial emails.

Include Sender Information

Marketers sending electronic messages to those with an "Australian link" (and to those with links to most developed countries) must properly identify their business.

ACMA requires marketers to include the following sender information:

  • Business name (legal name and  Australian Business Number (ABN) when applicable)
  • Physical Business address
  • Contact Information (email address and/or telephone number)

This information is required when electronic messages are created and/or sent by a 3rd party. Requiring sender information has become a standard element of legislation regulating spam messages. It is a requirement of CAN-SPAM, GDPR, CASL, and more.

Reputable email marketing software companies have responded by making it impossible to send marketing emails on their platforms without including this information. 

Consent Requirements

The Australian Communications and Media Authority specifies two types of proper consent: express permission and inferred permission.

Express Consent

Express consent is when a consumer has specifically given your company permission to contact them. A company must have received permission from an email recipient in one of the following forms: filling in a form, ticking a box on a website, or verbal permission (phone or face to face).

Inferred Consent

Inferred consent gives companies a little more leeway to contact consumers who haven't specifically given permission to contact them. The Australian Spam Act states that if a person gives you their email address and you believe you have a legitimate reason to send them marketing messages, you can infer consent. Making a purchase or signing up for a COVID contact-tracing list is not implied consent.

Under both types of consent, it's essential to collect evidence of consent from each individual consumer. Organizations must store a record of that individual's consent. If ACMA decides to take action against an organization, it is the organization's responsibility to provide ACMA representatives with proof of permission. 

Harvested-Address Lists 

ACMA warns email marketers about the possible repercussions of using a purchased email list, building a list using address-harvesting software, and using/supplying such software. If you can't prove or would incriminate yourself by proving how you found someone with an Australian links email, do not contact that person. 

Opt-Out Mechanisms

Opt-out mechanisms should be easy to find and opt-out requests should be processed as soon as possible.

Opt-Out Requirements:

  • Clear instructions on how to unsubscribe. 
  • Honor opt-out requests within 5 business days
  • Option to Opt-out doesn't expire
  • No additional fee/cost associated with unsubscribing 

It is best for your organization and the consumer to make opting out as easy as possible. Email marketers should only want individuals who are interested in reading their emails and taking action based on them on their mailing lists.

There is no advantage of holding a consumer hostage on your list. 

It only creates frustration from consumers. This frustration can result in a consumer leaving bad reviews and marking your email as spam. This turns an uninterested consumer into someone who wants to damage your business. 

Penalties for Breaches of Australian Privacy Laws & Spam Regulations 

Violating the Australian Spam Act is not cheap, and ACMA isn't shy about enforcing its regulations. ACMA states that "repeat corporate offenders may face penalties of up to $2.22 million AUD a day".

According to a March 2021 blog post from ACMA, businesses were forced to pay over $2 million AUD in the previous 18 months. Telco First, Woolworths, Kogan, and Vodaphone/Coca-Cola have all been fined by ACMA for violating the Spam Act.  

Wrap Up

It is the responsibility of email marketers to familiarize themselves with laws regulating consumer data, electronic messages, privacy laws, penalties for non-compliance, and the government bodies that enforce them. 

Reading this blog post is a good start, but we also suggest going to the source to learn more. 

As we mentioned above, the Australian Communications and Media Authority is the government body that is responsible for updating and enforcing electronic communications spam. 

They have excellent resources for marketers to review.

If you still have questions after reading this blog post and reviewing the resources provided by the ACMA, we suggest seeking legal advice from an attorney that specializes in this area.

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