Certain electronic messages are exempt or partially exempt from the Act. These 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 and give accurate information to enable people to identify and contact the person or organisation that authorised them.
Purely factual messages
Purely factual messages are 'designated commercial electronic messages' and are partially exempt under the Act. These messages do not have to meet the consent or unsubscribe conditions of the Act. However, all factual messages 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.
To be exempt, a government message must fall under the description of purely factual or 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.
Registered charities, registered political parties and educational institutions
Registered charities, registered political parties and educational institutions are exempt from the Act. If an organisation falls into one of these categories, then any commercial electronic messages it sends are exempt from the 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 Act.
If a newsletter has 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 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 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.
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 Act.
Recruitment firms and employment agencies send messages for the purpose of attracting business. 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 Act.