Express consent is best consent | ACMA


19 July, 2011 10:33 AM


Express consent is best consent

By Editor

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Successful e–marketing…it’s about reputation

E-marketing is not just a numbers game. That is, the business you bring in DOES NOT depend on the number of messages you send. While it may seem like a good idea to send e-marketing offers to everyone who buys your products it pays to think not only about your Spam Act obligations, but also how your reputation may suffer if messages are sent to unwanted recipients.

‘I purchased a product from the xyz website, however I did choose not to subscribe to email notification of deals. This instruction was not followed and I have received unrequested emails every day.’

Do I need consent?

Yes, you need to have consent before you send electronic messages (email, instant messages or SMS) that promote or advertise your products and services. There are two forms of consent: express consent and inferred consent.

What is express consent?

Express consent is when a person directly says that they want to receive your messages. This means that when you send a message you can be confident that the person has agreed to receive it.

Express consent can be gained in a variety of ways – for example by filling in a form, actively ticking a box on a website, over the phone or face-to-face. It’s simple to set up your systems to obtain consent at the same time that a customer comes to visit you for the very first time. Remember that the Spam Act requires that you be able to prove consent, so make sure you have procedures for keeping the details of consent when you collect them.

Don’t forget, you can’t send an electronic message to seek consent: this is in itself a commercial message.

What is inferred consent?

Inferred consent can occur when there is a strong existing business relationship and a person has a reasonable expectation of receiving your messages.

The problem is that it is difficult to know what a person’s reasonable expectations are. If you infer consent to send messages you need to think about:

  • Will the person know who you are and why they are getting the message?
  • Does the person want to receive your message?
  • What is your relationship with the person?
  • What does the person think their relationship is with your business?

Remember, a one-off purchase by a person is not likely to give you inferred consent to send your messages.

So how do you maintain your business’ good reputation?

If you always get express consent before adding an address to your mailing list, you don’t have to worry about whether the person receiving your messages has the same understanding as you of what it is reasonable to expect.

By gaining express consent, you can not only feel safe in the knowledge that you are only marketing to people who want to hear from your business, but they are also more likely to purchase from your business.


  • Get your customers to tell you they want to receive your marketing messages
  • Don’t pre-tick any tick-boxes on your website or forms

Keep a record when consent is given, including who gave the consent and how. Under the Spam Act, it is up to the sender to prove that consent exists.

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