Kmart Australia Limited has paid a $1,303,500 infringement notice for sending more than 200,000 marketing emails in breach of Australian spam laws.
The Australian Communications and Media Authority (ACMA) opened an investigation following consumer complaints and found Kmart sent 212,471 messages to customers between July 2022 and May 2023 who had previously unsubscribed. The investigation found that the breaches occurred due to a combination of technology, system and procedural failures.
ACMA Chair Nerida O’Loughlin said people are frustrated and angry with big brands intruding on their privacy by not respecting their wishes to unsubscribe.
“When a customer decides to opt out of a marketing mailing list, businesses are obliged to fulfil that request. The rules have been in place for nearly 20 years and there is simply no excuse.”
"Kmart’s case is particularly concerning as it went on for such a significant period,” Ms O’Loughlin said.
Prior to opening its formal investigation, the ACMA alerted Kmart on multiple occasions it may have issues with its consumer marketing.
“Kmart was given more than enough notice it may have a compliance issue, and it should have done more to address its problems before we had to step in and investigate.”
The spam rules require businesses to have consent from consumers to conduct e-marketing, and, when they receive an unsubscribe request, it must be actioned.
In addition to the financial penalty, the ACMA has also accepted a comprehensive two-year court-enforceable undertaking from Kmart committing it to appoint an independent consultant to review its compliance with spam rules and to make improvements where needed. Kmart must also report regularly to the ACMA.
“Any business that conducts e-marketing should be actively and regularly reviewing its processes to ensure it is complying with the rules,” Ms O’Loughlin said.
This action follows recent enforcement taken against other companies that have breached the spam laws, including DoorDash, Ticketek, and Uber. The ACMA also recently accepted enforceable undertakings from Webull and The Wine Collective after they admitted they contravened the spam laws.
Enforcement of the spam unsubscribe rules is one of the ACMA’s compliance priorities and over the last 18 months businesses have paid more than $12.5 million in spam and telemarketing penalties.