In certain cases, consent to receive a commercial electronic message can be inferred if the recipient has 'conspicuously published' their work-related electronic address, and the message you want to send them is directly related to their line of work.
You can only infer consent through conspicuous publication if:
- the electronic address is published ‘conspicuously’ – it is accessible to the public, or a section of the public (for example, it appears on a website, telephone directory or brochure)
- the address is not accompanied by a statement that commercial messages are not wanted
- the subject matter of your message is directly related to the principal role or function of the recipient (electronic account-holder).
You might be able to determine the person's role from the context in which their address is published, from the address itself (for example, firstname.lastname@example.org) or from accompanying information (for example, 'To contact our accounts department, email: email@example.com'). If you are not certain that your message relates directly to the role of the intended recipient, and you send it anyway, you may breach the Spam Act.
With conspicuous publication, there must be a strong link between what you are promoting and the recipient's role or line of business. You cannot infer someone's consent just because you believe your product would benefit them.
- If you sell IT software for businesses, this does not mean you can send promotional emails to any business with a published email address. However, if a business conspicuously publishes the email address of their IT department, you may be able to infer that account holder's consent, as your message is directly related to their role, function and line of business.
- If your business sells washers for taps, you cannot send commercial emails to all businesses with conspicuously published email addresses on the assumption that they all need washers in their taps. However, you could send your promotional emails to plumbing supplies stores.
Giving someone a business card is not conspicuous publication, although it could be enough to infer consent.
All commercial messages sent with inferred consent must also meet the identify and unsubscribe conditions of the Spam Act.
For more information on the three key conditions of the Spam Act, visit the links below: