Australia Cracks Down On Unsolicited Spam Email
The Australian Communications and Media Authority has issued a formal warning to online retailer Topbuy, following an investigation that found the company had breached the Spam Act 2003 by sending three commercial electronic messages to consumers without their consent.
The ACMA formed the view that the breaches it found were indicative of broader systemic issues.
The ACMA’s investigation related to complaints alleging that Topbuy had sent emails to people who had previously requested to be unsubscribed from Topbuy’s mailing list or who had not consented to receive commercial electronic messages in the first place. Topbuy claimed in at least one case that it had obtained consent through a family and friends’ referral campaign.
‘Many businesses try to acquire clients through referrals from family and friends, but this is simply not allowed under the specific opt-in marketing provisions of the Spam Act,’ Mr Chapman said. ‘Consent to receive commercial electronic messages can only be given by the relevant electronic account-holder—the person responsible for that account—and not by another person. It’s just not acceptable.’
The Spam Act establishes that commercial electronic messages must be sent with the recipient’s consent, and that consent to receive such messages is considered to be withdrawn five business days after any request to unsubscribe or opt out.
‘Online retailers rely on email marketing, but time and time again the ACMA receives complaints about sloppy or cavalier consent practices. Topbuy and the online retailing industry more generally should consider themselves to be on notice.’
Mr Chapman acknowledged that Topbuy had engaged with the ACMA to seek advice and resolution about this issue, while demonstrating due concern. ‘In this circumstance, a formal warning was issued to indicate the ACMA’s concerns about contraventions and allow the business to take compliance action to prevent any future contraventions,’ he said.
Under the Spam Act, potential penalties of up to $1.1 million per day may be imposed by the Federal Court for repeat offenders.
If people are receiving commercial electronic messages for which they have not provided consent, or have been unable to unsubscribe themselves from a mailing list, complaints can be made at www.spam.acma.gov.au or by calling the ACMA on 1300 855 180.
The Spam Act 2003 regulates unsolicited commercial electronic messages in Australia. Commercial electronic messages can be emails, SMS messages, MMS messages, instant messaging messages or any other similar messages.
Unsolicited commercial electronic messages with an Australian link are also covered by the Spam Act, which applies to electronic messages, including SMS, sent with the intention of obtaining financial advantage through deception.
The Act sets out that commercial electronic messages must have the following features:
- Consent – it must be sent with the recipient’s consent. They may give express consent, or consent may be inferred from their conduct and ‘existing business or other relationships’;
- Identify – it must contain clear and accurate information about the person or organisation that authorised the sending of the message; and
- Unsubscribe – it must contain a functional ‘unsubscribe’ facility to allow the recipient to opt out from receiving message from that source in the future.
The penalty provisions of the legislation came into force in 2004. At that time Australia was tenth in the ranking of spam-relaying countries for email spam, according to the Sophos list. For the 2008 calendar year, Australia had fallen to 32nd.
The Spam Act provides a range of enforcement options and the ACMA determines an appropriate action on a case-by-case basis. Formal warnings are used by the ACMA to indicate concerns about alleged contraventions and allow for the business or individual to take compliance action to prevent any future contraventions.
The Spam Act is enforced by the ACMA and complaints about spam can be made to the ACMA website at www.spam.acma.gov.au or the ACMA hotline 1300 855 180.
Topics: ACMA, Australia, business, commercial electronic messages, consent, email, email marketing, Governance, internet, online, online retailer, opt in, opt out, referral campaign, retail industry, Spam Act 2003, technology, Topbuy
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