The Spam Act prohibits the sending of unsolicited commercial electronic messages - known as spam - with an Australian link. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.
If your business uses any form of e-marketing, including email, SMS (text message), MMS (image-based text messages) or instant messaging, you must understand and meet the following three key requirements of the Spam Act:
- Consent - the message must be sent with the recipient's consent. The recipient may give express consent, or under certain circumstances consent may be inferred from their conduct or an existing business or other relationships
- Identify - the message must contain accurate information about the person or organisation that authorised the sending of the message and how to contact them
- Unsubscribe - the message must contain a functional 'unsubscribe' facility to allow the recipient to opt out from receiving messages from that source in the future. Unsubscribe requests must be honoured within five working days.
A message does not necessarily have to be sent out to numerous addresses to be considered spam. Under Australian law, a single electronic message can be considered spam.
The supply or use of address harvesting software or harvested email addresses for the purpose of sending spam is prohibited.
What is a commercial electronic message?
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, commercial 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.
More information is available in the fact sheet about commercial electronic messages.
What messages can be sent without consent being obtained?
Certain messages from the following types of organisations:
- government bodies
- charities
- religious organisations
- registered political parties
- educational institutions (for messages sent to current and former students).
To be permitted, the message must relate to goods or services supplied by the body that authorised the sending of the message. More information on permitted messages is available.
Purely factual messages are also permitted.
What kind of enforcement powers does the ACMA have?
The Telecommunications Act 1997 gives the ACMA powers to search premises and seize equipment where an ACMA inspector suspects on reasonable grounds that the Act has been breached, and to impose and enforce penalties. The Act also provides for orders for forfeiture of profits derived from spam, and payment of compensation to spam victims.
Penalties for breaching the Act are up to $1.1 million per day, in respect of all the messages sent in breach of the Act on that day.
Details of enforcement action the ACMA has taken to date is available.
Codes of practice
Australia’s e-marketing and internet industries have developed separate, complementary codes of practice to supplement the Spam Act. The codes elaborate the requirements of the Spam Act and provide procedures to enable organisations to comply with the Act and handle spam complaints.
The e-Marketing code of practice was registered on 16 March 2005. The Internet Industry Association (IIA) developed The Internet Industry Spam code of practice and it was registered on 16 March 2006. For more information visit the IIA’s website at www.iia.net.au. Senders of mobile premium services must comply with the Mobile Premium Service code of practice.
For information on applying the Spam Act to your marketing and business activities, see also:
