The following information is provided as a guide only and while every reasonable effort has been made to ensure the information is accurate at the time of publication on this page, it should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.
Can I use friend get friend or viral marketing campaigns?
Friend get friend marketing and viral marketing are promotional campaigns that utilise networks of friends to distribute commercial electronic messages about a product, offer, competition or website.
When considering pursuing this type of marketing campaign, consent provisions need to be taken into account. In the first instance, initial messages in the campaign must be sent with the consent of the recipient and comply with the Spam Act.
The practice of suggesting that an initial recipient of your message provides you with the email addresses of five other friends so that you can then send commercial electronic messages does not provide you with inferred consent. This is because the relationship is between the recipient and his or her friends, not your business and the friends. In these circumstances, the recipient cannot provide consent on behalf of their friends.
Businesses that cause such messages to be sent or aid such messages to be sent – for example by setting up facilities that aid the sending of a commercial electronic message, by authoring the content of that message, or by authorising individuals to send a commercial electronic message to their friends on their behalf - may be in breach of Spam Act if consent has not been obtained.
Under the Spam Act the evidential burden of demonstrating that an email recipient consented to receive the message falls on the business relying on consent. Businesses should therefore be prepared to demonstrate that the consent of the relevant account holder was properly obtained. If businesses are unsure of the application of the Spam Act to any of their promotions they should seek independent legal advice.
The E-marketing Code of Practice also deals with friend get friend and viral marketing campaigns.
Can I add a person’s email address or mobile telephone number to a marketing list if they have sent my business an email enquiry, or purchased from my website?
If you are replying to a customer enquiry, you have that person’s consent to send them a commercial electronic message related to their enquiry. You may also include extra information (such as price lists and a link to your website) if the customer could reasonably expect to receive such information as a result of their enquiry.
Every commercial electronic message must contain an unsubscribe facility, even if it is a one-off communication in response to an enquiry. It may be convenient to make the unsubscribe facility part of your corporate signature, so that it is included on every email your business sends.
Generally, you cannot add a person to a mailing list on the basis of a one-off enquiry. You need to determine whether they would have a reasonable expectation of receiving your commercial electronic messages. This will relate to the nature of their initial enquiry.
Am I allowed to send market research surveys by email?
A market research survey that contains information or website links that promote a business, product or service, or comments or claims about the company conducting the survey (e.g. ‘excellence in market research’) is likely to be a commercial electronic message.
Offers of prizes for completing a survey may make the message commercial because prize descriptions usually contain information that promotes the provider of the prize, the brand, or the prize itself. These messages must comply with the Spam Act.
However, if the survey contains only purely factual information, including links to websites that contain only factual information, it may be a permitted message under the Spam Act.
Is my monthly e-newsletter a commercial electronic message under the Spam Act?
The Spam Act defines a commercial electronic message as any electronic message that:
- offers, advertises or promotes the supply of goods, services, land or business or investment opportunities
- advertises or promotes a supplier of goods, services, land or a provider of business or investment opportunities
- assists a person to dishonestly obtain property, financial advantage or other gain from another person.
The Act classifies an electronic message as ‘commercial' by considering:
- the content of the message
- the way in which the message is presented
- any links, phone numbers or contact information in the message that lead to content that has a commercial purpose - as these may also lead the message to be defined as 'commercial' in nature.
If the message contains only purely factual information, with no commercial content or purpose, then it may be a message that is permitted under the Spam Act. It must still contain accurate information to identify the person or business that authorised it to be sent.
To be 'purely factual', a message must not contain any information that promotes any business, product or service. Any links to websites contained within the message must also lead to purely factual information.