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Do you have any information to share regarding Australia Spam Act?

Environment:

Email Deliverability (EDG), Outbound Emails

Resolution:

This answer is part of the Email Deliverability Best Practices doc community. Each answer's intention is to contribute to the betterment of the email community. These answers are only related to outbound messages, and do not have any impact to the improvement of inbound deliverability. For more information regarding deliverability's role at RightNow, please review the following answer page: Answer ID 2195: Email Deliverability Group (EDG) and Spam Considerations and Policy.

Furthermore, this is not intended as legal advice and you should consult with your own legal counsel for questions regarding compliance. This answer provides a high level summary but may not reflect the latest requirements. You should always discuss in greater detail with your legal counsel to ensure you are in compliance.

Australia

The Spam Act 2003 prohibits the sending of unsolicited commercial electronic messages -- known as spam -- with an Australian link. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.

What is commercial messages?

The Spam Act 2003 defines a commercial electronic message as:

• Offers, advertises or promotes the supply of goods, services, land or business or investment opportunities
  
  
• Advertises or promotes a supplier of goods, services, land or a provider of business or investment opportunities
  
  
• Helps a person dishonestly obtain property, commercial advantage or other gain from another person.

The Act classifies an electronic message as 'commercial' by considering:

• The content of the message
  
  
• The way the message is presented
  
  
• Any links, phone numbers or contact information in the message that leads to content with a commercial purpose—as these may also lead the message to be defined as 'commercial' in nature

What messages can be sent without consent?

Certain messages from the following types of organizations:

• Government bodies
  
  
• Registered charities
  
  
• Registered political parties
  
  
• Educational institutions (for messages sent to current and former students)

Sender identification

Any commercial electronic message you send must accurately identify you, as the person or organization that authorized the sending of the message. If this condition is not met, the message is classified as spam.

This information must remain correct and valid for at least 30 days after the message is sent.

Every commercial electronic message you send must:

• Clearly and accurately identify the individual or organization who authorized the sending of the message. For example if your organization gets a third party to send out messages on its behalf, the message must clearly identify the organization on whose behalf the message is being sent—the correct legal name of the organization or individual, and an Australian Business Number, where applicable.
  
  
• Include accurate information about how the recipient can contact your organization, or you as an individual sender.

Mandatory unsubscribe facility

Under the Spam Act 2003, every commercial electronic message must contain a functional and legitimate 'unsubscribe' facility. This is an electronic address the recipient can use to tell the sender they do not wish to receive messages.

Businesses must make it easy for people to unsubscribe from electronic mailing lists. An unsubscribe facility must satisfy the following:

• It must remain functional for at least 30 days after the original message was sent
  
  
• It must allow the unsubscribe message to be sent to whoever authorized the sending of the message, not necessarily any third party that sent it on their behalf
  
  
• Unsubscribe instructions must be presented in a clear and conspicuous way
  
  
• A request to unsubscribe must be honored within five working days
  
  
• Unsubscribing must be at low cost, or no cost, to the user (for example, in the case of SMS unsubscribe facilities, a 1800-telephone number would be acceptable)

Examples of unsubscribe facilities that are clearly worded and easy to use include:

• Email—'Unsubscribe: if you no longer want to receive messages from us, simply reply to this email with the word "unsubscribe" in the subject line.'
  
  
• Email—'If you no longer want to receive these messages, please click the "unsubscribe" button below.'
  
  
• SMS—'Unsub: reply NO' or 'Unsub: (1800-number).’
  

An unsubscribe facility may also be a link to a website where the person can easily click a button to remove themselves from a mailing list. Unsubscribe facilities must always be easily accessible, must not require the payment of a fee to the sender of the original message or a related person, and must not cost more than the usual cost (if any) of using such addresses.

Inferred consent and conspicuous publications

Under the Spam Act, you can only infer consent through conspicuous publication if:

• The electronic address is published 'conspicuously'—that is, it is accessible to the public, or a section of the public (for example, it appears on a website or in a telephone directory or brochure)
  
  
• The address is not accompanied by a statement that commercial messages are not wanted
  
  
• The subject matter of your message is directly related to the principal role or function of the recipient (electronic account-holder)

You might be able to determine the person's role from the context in which their address is published, from the address itself (for example, accounts@business.com) or from accompanying information (for example, 'To contact our accounts department, email: numbers@business.com'). If you are not certain that your message relates directly to the role of the intended recipient, and you send it anyway, you may breach the Spam Act.

With conspicuous publication, there must be a strong link between what you are promoting and the recipient's role or line of business. You cannot infer someone's consent just because you believe your product would benefit them.

Examples:

• If you sell IT software to businesses, this does not mean you can send promotional emails to any business with a published email address. However, if a business conspicuously publishes the email address of their IT department, you may be able to infer that account holder's consent, as your message is directly related to their role, function and line of business: IT.
  
  
• If your business sells washers for taps, you cannot send commercial emails to all businesses with conspicuously published email addresses on the assumption that they all need washers in their taps. However, you could send your promotional emails to plumbing supplies stores.

References

Key Elements of Spam