Nobody likes receiving pointless marketing emails, especially if they haven’t asked for them. Spam legislation exists to set out responsibilities for organisations who send commercial emails. And with hefty fines for non-compliance, it’s something everyone should be aware of if they’re sending any type of marketing email. 

In Australia, every commercial email you send is covered by the Spam Act 2003, along with other commercial forms of electronic communication like SMS. In April 2021, there was an update to the SPAM Regulations 2021. 

There are three things you need to ask yourself to ensure your marketing emails comply with the Spam Act and protect your business from penalties. ADMA members can also access the ADMA Spam Toolkit.

1. Has this person consented to receive email marketing from my organisation?

“Consent is one of the biggest challenges facing email marketers – especially understanding what constitutes consent, managing consent and making sure you have the right documentation around how consent was gained,” says Mike Zeederberg, ADMA instructor and Managing Director of digital marketing agency Zuni. 

Consent means getting the right permission from the recipient before you send them any type of marketing email. The Spam Act outlines two different types of permission – express and inferred.

• Express: Express consent is where the recipient of the email opts in to receive your emails via your website, over the phone, face to face or by completing a form. Not only do they need to provide express consent – you need to be able to prove it, which means keeping a record of when they provided permission and who gave the permission. This is particularly helpful in situations where a customer has withdrawn consent and then somehow opted in. 

• Inferred: Inferred permission is where it is reasonable to assume a person would want to receive marketing from your business. This is most often when there is an existing business relationship and your marketing is relevant to that relationship.

When building your email marketing list, there are various ways to give our customer the chance to opt in expressly. The a ‘double opt-in’ process is considered email best practice the most transparent method of  for obtaining consent. This is when your recipient opts in to receive your emails using a form, then follows it up by clicking on a link in an email to confirm they are happy to receive emails from your organisation. This method is likely to build a database of your most engaged customers. There are however other ways to get customers to opt in and it is good to run your default method by your compliance teams to ensure it is in line with your company’s policy/ preference.

Mike cautions that just because you have permission to send someone an email, it doesn’t mean you should. 

“Consent is important to understand from a legal perspective but also from a practical user perspective. Just because someone has ticked a box to opt in to communications for one department in your organisation, doesn’t mean you should spam them from 17 different business units just because you legally can.”
 

2. Does my email include all my identifying information?

To comply with the Spam Act, your email marketing needs to include your identity and your business contact details. These details should be clearly displayed on each email, something which Mike points out is good marketing practice anyway.

“There’s no point in sending a marketing email if your recipient doesn’t know who it’s from. If you’re using an email marketing platform like Mailchimp your emails will automatically include this information,” he explains. 
 

3. Does my email include a functional unsubscribe facility?

To comply with the Spam Act, your emails must contain an easy way for people to unsubscribe. It also needs to be clearly worded so people know what they need to do and it shouldn’t require users to provide any more information or set up an account. Any requests to unsubscribe should also be honoured quickly – within five working days.  

An unsubscribe feature will usually be built in to your emails, as long as you’re using a reputable email marketing platform. 

“Most email platforms make it almost impossible to send out an email without having an unsubscribe link automatically built into it,” Mike explains. “But you want to think about what people are unsubscribing from when they hit the button.” 

Instead of making it the default for a person to unsubscribe from every single email from your organisation, Mike suggests creating a ‘nuanced unsubscribe’ where users can choose which emails to opt out of from a list of options – like news, product updates, e-newsletters or marketing emails. You still legally need to provide an option to unsubscribe from all, but allowing people to tailor the emails they receive may help keep some of those subscribers on your database. 
 

Should you buy a list from a third party? 

There are a lot of companies out there offering to sell email marketing lists to marketers, but Mike stresses that this is to be avoided. 

“It’s a really, really bad idea,” he explains. “You have no idea what the consent criteria is on that list, what people have opted in to actually receive and what the consent frameworks are.”

If a marketer ends up with a list without the right consents, your organisation may find the costs associated will go beyond the list purchase price – it could be the cost of a breach.
 

What happens if I don’t comply with the Spam Act?

Non-compliance with the Spam Act can come with a number of consequences beyond just legal. As well as fines and penalties, if your emails receive a lot of unsubscribes and spam complaints, your email service provider may close your account. If this happens, you won’t be able to send emails to anyone - even people who genuinely want to receive them. 

If you are in any doubt over whether to send an email, or you’re not sure where to draw the line over inferred or express consent, check with your legal team.   

Want to learn more about email marketing strategy? In the ADMA IQ Email Marketing Strategy course, Mike will teach you how to plan, create and evaluate effective email marketing campaigns.