The Spam Act - what are businesses still not getting right?

It's been just over 20 years since the rollout of the SPAM Act, however, businesses are still not getting it right. Given the increased focus of the regulators, holding businesses accountable for their failure to comply, along with the damaging reputation businesses face with customers on the line, it is paramount you brush up on your understanding of the SPAM laws before hitting send on your next marketing campaign.

What are we getting wrong?

Earlier this month, yet another 2 well-known Australian businesses were fined $1.5 million and $2.5 million respectively for spamming Australians with texts and emails. So what exactly went wrong and why does this keep happening?
According to ACMA, each company had breached the SPAM Act by sending customers marketing emails and texts with no working way to unsubscribe and without the proper consent required. Of special interest to both businesses and marketers should be the fact that one of the investigations found that a bulk of the emails sent in breach of the Act were order confirmations and password reset messages. The investigation report stated that these communications also included clearly commercial content such as how to view and purchase products and a free shipping promotion. The issue here is that once a marketing message or promotion is added to these kinds of messages the message stops being categorised as a service/ transactional (“designated”) message and instead becomes a marketing/ promotional communication and therefore must meet the requirements of the SPAM Act (including having the right consent to send the communication ).

Reports of recent investigations show that the Australian Communications and Media Authority (ACMA) is cracking down on communications that businesses miscategorise. So to avoid your business becoming a case study, make sure your business is following its compliance responsibilities.

Preventing SPAM:

As marketers, it is our responsibility to be familiar with the parameters of responsibly sending electronic communications.  The SPAM Act contains three main rules that message senders must comply with - consent, identification, and unsubscribe facilities. As a high-level checklist:

1. Consent:

Ask, have I got the right consent or permission from my recipient? This can be explicit (the recipient has deliberately and intentionally opted-in to receiving electronic messages from the message sender) or inferred (This is usually when a person has a provable ongoing relation with your business and the marketing via electronic communications is directly related to that relationship.).

2. Identify:

Have I clearly identified my business and address in each email? All commercial electronic messages must contain clear and accurate identification of the sender of the message and information on how the recipient can contact the sender.

3 Unsubscribe:

Has a fully functioning unsubscribe or opt-out button been included in each email?  This means there must be instructions on how recipients can opt-out of receiving messages. Whatever consent they may have given to receiving commercial electronic messages, they can withdraw it if they no longer wish to receive those messages.

This checklist is the bare minimum for marketers and can be easily implemented by ensuring your preference centre is easy to get to from one click within an electronic communication, and that it is functional, clear, and transparent. This way, customers can decide what type of messages they wish to hear about, what channels they prefer to be contacted through, and whether they wish to opt in or opt out of a particular type of communication. 

The many shapes and forms of SPAM

We all know SPAM usually comes in the form of text messages and emails. Lesser-known types of SPAM include employment solicitations, excessive cross-posts, messages from lists that don’t confirm subscriptions, and unexpected list messages. Ensure your business is familiar with the many different types of SPAM, including any recent updates on the SPAM laws and regulations.
The most recent SPAM laws update occurred in April 2021 (ACMA), with regulators clarifying unsubscribe request requirements. Now when someone receives a commercial electronic message and makes an unsubscribe request (using the unsubscribe facility they have been directed to in the message) they should not be required to:

• Use a premium service

• Provide further personal information

• Log in to or create an account; or

• Pay a fee or charge to the sender or a related person (with some exceptions)

There are many other actions that may break SPAM act law. For example, under the Spam Act, you cannot:

• Use or supply a list that has been created with address-harvesting software

• Use or supply address-harvesting software

It is also against the law to:

• Help, guide, or work with another person to break the spam rules

• Encourage another person to break the spam rules

• Be directly or indirectly, knowingly concerned with breaking the spam rules

Review your consent records

Businesses should review their consent records to ensure they have valid consent from an individual before sending commercial electronic messages. It’s important to review your mailing list frequently, ensuring the oldest names on the list still have a valid opted-in and consented and haven’t deleted their accounts/memberships.

Why complying is so important

The very basics of SPAM are covered in the above checklists. Not complying with the above rules can land you and your business in hot water with regulators. ACMA states that in 2022-23 businesses that contravened the SPAM Act were given a total of $8 million in fines in addition to court-enforced undertakings. 
However, the fine is only one element of what it costs the business. Once a business is found to be in breach, it must undergo an enforceable undertaking,- this involves training programs, processes, audits and check- ins with the ACMA for three years.  

Not to mention the reputational impact on the business. Businesses found guilty of spamming their customers often end up in news headlines with their reputations tarnished and consumer trust lost. The mistakes made by other companies and the fines and penalties imposed should act as a wakeup call and a warning to us all to ensure we are complying with the SPAM Act. It’s important to ensure that your business is informed and that you and your team are adequately trained so you don’t get caught out.

 Until the 30th of June 2024, save 30% on the Privacy and Compliance for Marketers course by applying code EOFY2024 at checkout. Terms and conditions apply.