What is a commercial electronic message?
This document has been prepared by the Australian Communications and Media Authority (ACMA) to provide information about the regulation of commercial electronic messages - one of the main concepts under the Spam Act 2003 (Spam Act).
The Spam Act 2003
Amongst other things, the Spam Act regulates the sending of commercial electronic messages and prohibits the sending of these messages except in certain limited circumstances. Electronic messages are messages sent by:
- short message service (SMS or text messages);
- multimedia message service (MMS);
- instant messaging (iM).
Electronic messages do not cover facsimile or normal voice-to-voice communication by telephone.
The Spam Act regulates electronic message which are commercial in nature, for instance, selling or advertising goods or services, or directing the recipient to a location where goods and services are sold or advertised.
Rules for sending a commercial electronic message
When sending commercial electronic messages, the three key steps to follow are:
- Consent Only send commercial electronic messages with the addressee's consent - either express or inferred consent.1
- Identify Include clear and accurate information about the person or business that is responsible for sending the commercial electronic message.
- Unsubscribe Ensure that a functional unsubscribe facility is included in all your commercial electronic messages. Deal with unsubscribe requests promptly.
1 Express consent is where a person has specifically requested messages from you and inferred consent is where there has been no direct request but it may be a reasonable expectation for the recipient to expect such messages. More information about consent is available from the ACMA website (www.spam.acma.gov.au)
What is a commercial electronic message?
The key factor in deciding if an electronic message is a commercial electronic message is whether the message is considered to have a commercial purpose.
Electronic messages with a commercial purpose may do one or more of the following:
- offer, advertise or promote goods or services, land (or an interest in land) or business or investment opportunity;
- advertise or promote a supplier of goods or services or land or a provider of a business or investment opportunity;
- assist or enable a person to dishonestly obtain property belonging to another person;
- assist or enable a person to dishonestly obtain a financial advantage or other gain from another person.
The purpose of the message will be decided based on the content of the message and the way it is presented. An electronic message may also be considered to be a commercial electronic message if the information which may be accessed via hyperlinks, telephone numbers or contact information in the message has a commercial purpose.
This means that even if the message itself has no commercial purpose but provides a link to a web page, which is considered to have a commercial purpose (based on presentation and content), then it may fall within the scope of a commercial electronic message.
Examples of commercial electronic messages
The following are common examples of electronic messages which are likely to be considered a commercial electronic message:
- offers of stock-market options, credit and mortgage arrangements;
- offers of computer goods including software and hardware;
- promotions of pharmaceutical and health-related products;
- promotions of sales at markets, shops or warehouses;
- sale of franchises or business ventures;
- SMS invitations to chat with other people for a fee;
- SMS or email promotions of dating websites and services;
- SMS or email promotions of pornographic websites or services;
- advance fee or Nigerian scam2 emails, get-rich-quick schemes and gambling services.
2 An advance fee scam is where a person claims to have access to funds currently held in a bank account or trust fund and offers a large sum for assistance involving providing bank account details or payment for administration fees. These scams are often called 'Nigerian scams' as they generally describe the need to move funds out of Nigeria.
Examples of electronic messages that may not have a commercial purpose
The following are examples of electronic messages which are not likely to be considered commercial electronic messages:
- community-focused messages, for example, about the closure of local riding and walking tracks;
- surveys, for example, collecting statistics about the use of public services and utilities;
- newsletters, for example, providing updates about matters of interest to the local community.
Nuisance messages such as those containing viruses may also not have a commercial purpose and may not be considered to be spam. However, messages of these types may be subject to separate Australian legislation.
What if the product does not exist?
Commercial electronic messages involving goods, services, land, business or investment opportunities will still be considered to be a commercial electronic message even if the goods, services, land, business or investment opportunities, do not exist. Therefore, if a person is seeking to sell land which does not exist or for which they do not have a legal title, then the message could still be classified as a commercial electronic message.
What if the product is illegal?
Commercial electronic messages involving goods, services, land, business or investment opportunities will still be considered to be commercial electronic messages even if purchasing the goods, services, land, business or investment opportunities is illegal. For example, a message offering to supply a prohibited pharmaceutical product would still come within the meaning of a commercial electronic message, even though the supply of such a pharmaceutical product may be illegal. A person may be liable for both a contravention of the Spam Act and any other Act which they have breached.
Where can I find out more?
For more spam-related information, including frequently asked questions, and online complaint and enquiry forms, visit the ACMA website at www.spam.acma.gov.au.
Please note: this document is intended as a guide only and while every reasonable effort has been made to ensure that the information is accurate at the time publication, it should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.