Certain types of electronic messages are exempt or partially exempt from the Spam Act. These exempt messages, known as 'designated commercial electronic messages', do not have to meet the consent and unsubscribe requirements of the Act. They must still meet the identity requirement however, and provide accurate information to identify and contact the person or organisation that authorised them.
Exempted messages include:
- Certain messages from the following types of organisations:
- government bodies
- charities, religious and non-government organisations
- registered political parties
To be exempt, the message must relate to goods or services supplied by the body that authorised the sending of the message.
Purely factual messages with no commercial content whatsoever are also exempt.
Certain electronic messages sent by government bodies are partially exempt from the Spam Act. These messages must still identify the body that authorised the sending of the message, but they do not have to meet the consent and unsubscribe conditions.
To be exempt, a government message must either fall under the description of purely factual (as above), or it must relate to goods or services supplied by that government body. Only government bodies that are a department, agency, authority or instrumentality of a state, territory the Commonwealth or foreign government can rely on the exemption.
Charities, charitable institutions, religious organisations and educational institutions are exempt from the Spam Act. If an organisation falls into one of these categories, then any commercial electronic messages it sends are exempt from the Spam Act’s consent and unsubscribe conditions if, and only if, the messages relate to goods or services supplied by the organisation that authorised the message. Note that such messages must still comply with the identify condition of the Act.
Not-for-profit organisations, community service organisations and non-government organisations are not exempt from any part of the Spam Act. Unless an organisation falls into one of the stated categories (Charities, charitable institutions, religious organisations or educational institutions), it must comply fully with the Spam Act rules of consent, identify and unsubscribe.
Purely factual messages are 'designated commercial electronic messages' and are partially exempted under the Spam Act. These messages do not have to meet the consent or unsubscribe conditions of the Act. However, all factual messages must provide accurate information to identify and contact the authorised sender. That is, they must meet the identify condition of the Act.
To fall within the factual information exemption, a message can only contain factual information, directly related comment (of a non-commercial nature), and the following limited 'commercial' information:
- the name, logo and contact details of the person who authorised the sending of the message, or the name and contact details of its author
- the name, logo and contact details of the author's employer, organisation, partnership or sponsor
Examples of purely factual messages include:
- meeting minutes circulated among committee members
- a product recall notice issued for safety reasons
- an electronic neighbourhood watch newsletter that is sponsored by a local business
- advice on entitlements for citizens or community groups that does not refer to a service in the course of trade or commerce
- an email sent to a business requesting a quote, price list or product description.
Sending purely factual information is acceptable, provided the messages contain the required identifying information. However, this does not mean you have the recipients’ consent to send future commercial messages, or to add them to a mailing list.
Most electronic newsletters do not constitute 'purely factual information'. While their content may be largely factual, their purpose is usually to promote an organisation’s products or services.
If the newsletter contains any more than the limited allowable commercial information outlined above (business name, logo and contact details), then it falls under the heading of a 'commercial electronic message', and must comply with the consent, identify and unsubscribe conditions of the Spam Act.
For example, a sponsored newsletter containing details or prices of the sponsor's products would fall outside the ‘factual information’ exemption, as would a newsletter that contained prominent links to a commercial website. If you are not certain that your electronic newsletter has no commercial content or purpose, it is safest to include a functional unsubscribe facility and ensure that you are sending it with the consent of all recipients.
Faxes and telemarketing
The Spam Act does not cover fax messages or voice-to-voice telemarketing. Telemarketing calls and faxes are covered by the Do Not Call Register, which was set up in response to increasing levels of community concern about the growth in unsolicited telemarketing calls and faxes. The Spam Act covers email, instant messaging, SMS (mobile phone text messaging) and MMS (mobile phone graphic messaging) of a commercial nature.
If you are an individual seeking employment, and your electronic message states only facts about yourself and additional commentary (for example, your own CV and a covering letter), then this is not a commercial electronic message and is outside the scope of the Spam Act. Contracts of employment are not ‘services’ under the Act.
However, recruitment firms and employment agencies do more than simply email resumes. They send these messages for the purpose of attracting business (hiring people through their books). In this case the business is offering a service, so the emails are commercial in nature and must comply with the consent, identify and unsubscribe conditions of the Spam Act.
Note that for recruitment and employment firms, inferred consent may exist if the firm has a strong existing business relationship with another organisation, or where that other organisation has conspicuously published its electronic address and the commercial message being sent relates directly to the business role of the message recipient. For example, an organisation places a newspaper advertisement seeking a graphic designer, and the recruitment firm emails details of a potential candidate to the address published in the ad.