Sydney-based ValueAd Marketing Pty Ltd (VAM)—which promotes product sampling/testing and ‘mystery’ shopping opportunities—has been formally warned for sending commercial SMSs without sufficient company contact information.
The Spam Act 2003 (the Act) 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 or commercial element.
‘Commercial electronic messages must include accurate information about how a recipient can readily contact the authoriser of the message’, said Australian Communications and Media Authority acting Chairman, Richard Bean. ‘Businesses must understand these obligations. They play an important role in keeping consumers informed and protected.’
VAM offers marketing services such as online customer acquisition and lead generation. Consumers who accept these opportunities also consent to receive marketing by VAM and other organisations.
The ACMA found that VAM sent the messages with the consent of the recipients and included a functional ‘unsubscribe’ facility as required by the Act. However, VAM’s contact details could not be accessed without first clicking through to a survey where there was a link to these details. This information was not contained in the message itself as required by the Act.
VAM amended its practices during the course of the investigation in order to comply. The ACMA will continue to monitor any complaints against VAM.
If you receive a marketing email that you think may not comply with the Spam Act, you can report it to the ACMA by forwarding the message to firstname.lastname@example.org. 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 email@example.com.
Media release 33/2016 - 4 October
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.
- Identification - 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 in light of the circumstances. Formal warnings are used by the ACMA to indicate 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 non-compliance continue or recur after a formal warning has been issued, the ACMA will consider escalating 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.
More information on Spam can found on the ACMA website.