On 5 June 2014, the ACMA decided to de-register the eMarketing Code of Practice. This code has been removed from the Register of industry codes. Further information about the code is provided below.
The Australian eMarketing Code of Practice was developed by representatives of peak industry associations, consumer groups, message service providers, government regulatory agencies and corporate business. The code aims to:
- reduce the volume of unsolicited commercial electronic messages received by consumers
- provide a plain English outline of how the Spam Act 2003 applies to current e-marketing practices
- promote best practice use of commercial electronic messages in compliance with the Act.
The code establishes comprehensive, industry-wide rules and guidelines for the sending of commercial electronic messages, and provides a framework for industry to handle complaints about spam.
The code was registered on 16 March 2005. The ACMA can enforce compliance with the code rules on all members of the e-marketing industry, as defined by the Telecommunications Act 1997, and not just signatories to the code.
Under the Spam Act 2003, the definition of a commercial electronic message covers emails, mobile phone messaging (SMS, MMS and EMS) and instant messaging of a commercial nature. The Spam Act does not cover facsimile messages, internet pop-ups or voice-to-voice telemarketing. The Spam Act does not cover fax messages or telemarketing calls.
Telemarketing calls and marketing faxes are covered by the Do Not Call Register Act 2006. The Do Not Call Register was established in response to increasing community concern about the growth of unsolicited telemarketing calls. The register is intended to minimise the number of unsolicited calls made to Australian numbers regardless of whether the calls originate in Australia or overseas.
Who does the code apply to?
The code applies to all persons and organisations undertaking an e-marketing activity. An e-marketing activity is defined in the Telecommunications Act 1997 and covers the following activities undertaken by an individual or organisation:
- to market, promote or advertise its own goods and services where sending or causing to send commercial electronic communications is the sole or principal means of marketing, promoting or advertising its own goods or services
- that by contract (or other arrangement with) a person markets, advertises or promotes the goods or services (including land and interests in land and business and investment opportunities) of that person by sending commercial electronic communications or causing them to be sent
- that by contract (or other arrangement with) a person markets, advertises or promotes that person as a supplier, prospective supplier, provider or prospective provider of goods or services (including land and interests in land and business and investment opportunities) by sending commercial electronic communications or causing them to be sent.
Code administration and compliance
The Code Administration Body, made up of representatives from e-marketing industry associations, message service providers and corporate businesses, is responsible for ongoing code administration.
- The code allows for an industry-based complaints-handling process, with escalated complaints referred to nominated recognised industry bodies. The code also sets out safety net provisions whereby complaints can be referred to the ACMA.
- In the first instance, any complaint about a breach of the code will be handled by the e-marketing company to which the complaint relates.
- If the complaint is not handled to the satisfaction of the complainant, it will be referred to the recognised industry body nominated by the e-marketing company. However, if the complaint relates to an e-marketing company that is not a signatory to the code, or if they are a signatory to the code but have not nominated a recognised industry body, the ACMA will deal with the complaint. A complainant may request that his/her complaint be referred to the ACMA for consideration at any stage of the complaints-handling process.
- The ACMA monitors the e-marketing industry’s performance against the code rules and may require a company whose compliance appears to be inadequate to address any process problems or difficulties.
Recognised industry bodies
E-marketing industry associations may apply to the ACMA for accreditation as a recognised industry body. Accreditation authorises a recognised industry body to investigate and resolve complaints on behalf of their members that are signatories to the code. The criteria on which the ACMA will determine accreditation are set out in Schedule H to the code.
In addition to handling complaints and reporting to the ACMA on the outcomes of an investigation, a recognised industry body must also do the following:
Signatories to the code
Under the code, e-marketing companies may apply to be a signatory to the code and nominate a recognised industry body, of which they are a member, to consider escalated complaints about their compliance with the code. As a signatory to the code, an organisation has indicated its willingness and commitment to comply with the code rules.
To apply for signatory status, an e-marketing company must complete the application form for signatory status and submit it to the ACMA or its nominated recognised industry body.