Mr Darren James, trading as the online marketing business Web 1000, has been given a formal warning by the Australian Communications and Media Authority for breaching the Spam Act (the Act).
An ACMA investigation found Mr James sent marketing emails without the consent of the recipients. He claimed his marketing database had been built from several marketing lists he had bought from third parties, and from enquiries sent to Web 1000's websites. However, Mr James had kept no evidence or supporting records to prove that recipients had consented to receiving his marketing emails.
Under the Act, a business sending marketing messages claiming it has the consent of the recipients must be able to prove that consent.
The ACMA gives businesses that use email marketing an important piece of advice: keep records of consent. This advice is even more critical when a marketing list is bought from a third party.
If you receive a marketing email that you think may not comply with the Act, you can report it to the ACMA by forwarding the message to email@example.com. You may also forward SMS spam to the Spam SMS service on 0429 999 888.
For more information see Backgrounder below or to arrange an interview, please contact: Blake Murdoch, on (02) 9334 7817, 0434 567 391 or firstname.lastname@example.org.
Media release 16/2016 - 31 March
The Spam Act 2003 regulates unsolicited commercial electronic messages in Australia. Commercial electronic messages can be emails, SMS messages, MMS messages, instant messaging or any other similar message that includes a marketing/commercial element.
The Act sets out that commercial electronic messages must not be sent without the following:
- Consent - they must be sent with the recipient's consent. Recipients may give express consent, or consent may be inferred from their conduct and existing business or other relationships. In either case, the sender must be able to prove they have the recipient’s consent
- Identify - they must contain clear and accurate information about the person or organisation that authorised the sending of the message
- Unsubscribe - they must contain a functional 'unsubscribe' facility to allow the recipient to opt out from receiving messages from that source in the future.
The Act provides a range of enforcement options and the ACMA determines an appropriate action on a case-by-case basis. Formal warnings are used by the ACMA to indicate serious concerns about contraventions, and allow for the business or individual to take compliance action to prevent any future contraventions.
Formal warnings have proven to be a successful remedy in addressing non-compliance with the Act. Over the last seven years, the ACMA has not subsequently investigated any business or individual after a formal warning has been issued. However, should contravening conduct continue or recur after being issued a formal warning, the ACMA is very likely to escalate its enforcement action.
The publication of a formal warning informs the public about the respondent’s conduct which may have given rise to contraventions and may act to deter the broader e-marketing industry from engaging in similar conduct.