Spam: What you need to know.
Although it may sometimes be hard to believe, it is illegal under Australian
legislation to send certain unsolicited emails.
 Introduction
The Spam Act 2003 (the “Act”) was enacted in 2004 with the view of combating the ever-increasing amount of “spam”. But what exactly is “spam”? Put simply, “spam” is junk mail which is in electronic form. Under the Act, a person is prohibited from sending without consent, an electronic message to another person, when that message contains an invitation to do business.
How do I know if I have obtained consent?
Whether or not you have obtained the required consent is pivotal when determining whether the Act has been breached or not. Establishing whether or not consent has been given is not always straightforward. Consent may be given either expressly or by inference. Express consent is typically given by subscription to a newsletter, completing a form, ticking a form or by verbal communication. Less obviously, inferred consent may be established through an existing relationship or through publication of a work-related Email address in a conspicuous location.
Does spam only related to Emails?
No. Under the Act, spam may be messages sent via electronic mail (Email), Short Message Service (SMS), Multimedia Message Service (MMS) or Instant Messaging Services. The Act in its current form does not prohibit voice telemarketing, internet pop-ups or facsimile messages and therefore, these forms of communication appear to be acceptable.
It should be noted that Government bodies, non-government organisations, registered political parties, charities, religious organisations and educational institutuions are partially exempt from the Act.
How do I comply with the Act?
If through your business you communicate with others via electronic messages, you must ensure that:
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you can establish that you have obtained consent to do so from the recipient of the message;
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you accurately identify yourself or your organisation as the authorised sender of the message; and
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the message contains an ‘unsubscribe’ facility.
Are there penalties for sending spam?
If you breach the provisions of the Act, you may be penalised by way of a civil fine or injunction, but it may be more likely in the initial instances to receive a formal warning from the Australian Communications and Media Authority (“ACMA”). However, Australia has seen substantial monetary penalties be ordered and orders for the forfeiture of profits and compensation imposed for breaches of the Act.
Conclusion
As a matter of risk minimisation, take the time to ensure that your business practices comply with the Act. A breach of the Act can potentially cripple your business, or at least, lead to substantial damage to your reputation in the marketplace.
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