Warning Bells on Spam Act Violations

Sarla Fernando: “If a consumer is asking to be removed off a list, they mean it.”

The Australian Communications and Media Authority (ACMA) is sounding the alarm for advertisers to adhere to regulations this festive season, as the watchdog intensifies its scrutiny of brands during the year-end sales period. 

In anticipation of Black Friday and the upcoming Christmas sales, ACMA has issued a comprehensive compliance reminder to the entire industry, prompted by an increasing number of compliance violations by various brands. This cautionary move follows the recent imposition of a $1.3 million fine on Kmart by the regulatory body, alleging the dispatch of over 200,000 emails to individuals who had previously unsubscribed from the mailing list. 

Notable penalties have this year also been levied against Commonwealth Bank and DoorDash, with associated penalties of  $3.55 million and $2 million, respectively, for their breaches of spam regulations.  

However, it was ACMA's decision to fine Ticketek $500,000 in October for recurrent spam violations that should put marketers on heightened alert. One aspect of this investigation focused on where a transactional / factual message was found to have been “a commercial electronic message’ in nature, thereby putting it within scope of the Spam Act. The distinction is a delicate one that is coming under increased scrutiny and has put many businesses on alert.  

ADMA’s director of regulatory and advocacy, Sarla Fernando, message to the industry is to not look just at the penalty in terms of the fine issues for these breaches as this is just a component of the consequences of a breach of the Spam Act.  

“The fine is only one element of what it costs the business. Once a business is found to be in breach, it then has to undergo an enforceable undertaking, which involves training programs, processes, audits, check ins with the ACMA for three years, and this could also include having consultants coming in each year to verify your processes. 

“It’s a very costly affair… I think that’s what needs to be educated a bit more in the market.” 

Fernando considers ACMA’s warning is a “timely reminder” to marketers “to ensure that your marketing distribution lists are up to date, that you’ve done regular quality assurance, that you make sure that your unsubscribe mechanisms are working, and that they’re synchronised across all of your databases. 

“And I think it’s really important to understand that if a consumer is asking to be removed off a list, they mean it.” 

Despite the Spam Act being around since 2003, companies are still getting it wrong. A less forgiving posture from the industry regulator and consumers, should be expected.  

If you or your teams need a refresher on the Spam Act and all things compliance, we highly recommend ADMA’s Privacy and Compliance for Marketers Course as a “must do”. With our End of Year sale running until 15 December, there couldn’t be a better time to set yourself up for success. Don’t let your business be the next compliance breach headline.