Whether you're targeting new customers or managing existing databases, you always need a person's consent before you can send them commercial electronic messages. There are two types of consent: express and inferred.
When an individual or organisation first provides their email address, and you plan to send them a commercial electronic message, you must first get their express consent.
Express consent can be gained in a variety of ways - for example by filling in a form, ticking a box on a website, over the phone, face-to-face or by swapping business cards - as long as the recipient is clearly aware that he or she may receive commercial messages in the future. You cannot send an electronic message to seek consent: this is in itself a commercial message, because it seeks to establish a business relationship.
Businesses should keep a record of all instances where consent is given, including who gave the consent and how. Under the Spam Act, it is up to the sender to prove that consent exists.
Inferred consent can come about in two ways:
- Through an existing business or other relationship, where there is a reasonable expectation of receiving those commercial electronic messages.
If an organisation has a strong business relationship with the holder of an electronic address – for example, the address holder is a member of a club, a subscriber to a service, or a client it deals with on an ongoing basis – consent to receiving messages from that organisation may be inferred.
If you are not confident that the existing business relationship is strong enough to infer consent, or are unsure that the recipient will want your messages, you will need to obtain express consent. You can do this by phoning the person and asking them for their consent.
- Through conspicuous publication of a work-related electronic address.
Consent may also be inferred when someone conspicuously publishes their work-related electronic address (for example, on a website, brochure or magazine); and your business wants to send them a commercial electronic message that relates directly to that person's line of work. However, if a publication includes a statement that the person does not want to receive unsolicited commercial electronic messages at that address, you can not infer consent.
For more information on the three key conditions of the Spam Act, visit the links below.