Under the Spam Act, every commercial electronic message must contain a functional and legitimate 'unsubscribe' facility. This is an electronic address the recipient can use to tell the sender (or the person or organisation that authorised the sending of the message) that they do not wish to receive future messages.
Businesses must make it easy for people to unsubscribe from electronic mailing lists. An unsubscribe facility must satisfy the following conditions:
- it must remain functional for at least 30 days after the original message was sent
- it must allow the unsubscribe message to be sent to whoever authorised the sending of the message, not necessarily any third party that sent it on their behalf
- unsubscribe instructions must be presented in a clear and conspicuous way
- a request to unsubscribe must be honoured within five working days
- unsubscribing must be at low cost, or no cost, to the user (for example, in the case of SMS unsubscribe facilities, a 1800- telephone number would be acceptable).
Examples of unsubscribe facilities that are clearly worded and easy to use include:
- Email: 'Unsubscribe: if you no longer want to receive messages from us, simply reply to this email with the word "unsubscribe" in the subject line.'
- Email: 'If you no longer want to receive these messages, please click the "unsubscribe" button below.'
- SMS: 'Unsub: reply NO' or 'Unsub: (1800-number)’
An unsubscribe facility may also be a link to a website where the person can easily click a button to remove themselves from a mailing list. Unsubscribe facilities must always be easily accessible, must not require the payment of a fee to the sender of the original message or a related person, and must not cost more than the usual cost (if any) of using such addresses.
Every commercial electronic message must contain an unsubscribe facility, even if it is a one-off communication in response to an enquiry. It is a good idea to make the unsubscribe facility part of your corporate signature, so that it is included on every email your business sends.
Is an unsubscribe facility always needed?
While commercial electronic messages do require a functional unsubscribe facility, in some cases this may be omitted where both parties agree otherwise. For example, a supplier and customer who exchange regular emails about a transaction may agree not to include an unsubscribe facility in every message. This can be a contractual arrangement or simply a mutual agreement.
An unsubscribe facility is not required where it would be inconsistent with the terms of a contract or agreement between the sender (whoever authorised the message) and recipient (the electronic account-holder) – for example, when a contract between two parties requires the sending of regular updates; or where the conditions of membership to an association require the sharing of commercial information between members via email. However, it would not be acceptable for the sender to vary the terms of an existing contract to make the receipt of marketing messages mandatory. That would not constitute the recipient giving consent.
For more information on the key conditions of the Spam Act, visit the links below.