How to Avoid SPAMMING

Understand the SPAM Act (2003) before sending that email

There are three basic principles of the SPAM ACT.

1)   Consent

You need to have the permission of the recipient of your email.

2)   Identify the sender

Your email needs to clearly identify who your company is and the address. E.g. Message From: XYZ Company (not Jim Smith).

3)   Have a functional unsubscribe facility

You must allow recipients to ‘opt out’ of future email communications, even if it is a one-off email.

Best Practice is also to state why the person is receiving the email. Something along the lines of: “You are receiving this email because you have subscribed to XYZ email news. If you no longer wish to receive this, you can unsubscribe here.”

The SPAM Act also covers SMS messages.  You must ensure you have consent, identify your business and offer a STOP option free of charge when you text.

Telemarketing phone calls and faxes are covered by the Do Not Call register.

Exemptions

There are very few exemptions. These are for government bodies, registered charities and not-for-profits, and registered political parties, and purely factual information messages.

What about newsletters?

These rarely fall under the ‘pure factual messages’. Their purpose is generally commercial in nature so they are not exempt.

Can I email my customers?

Yes, this may be considered an “existing relationship”. For example, if they are a service subscriber such as a phone plan or bank account. However, if it is just a one-off purchase (such as Tshirt or they attended a concert), no, this is not grounds for sending commercial email.

Types of Consent

You can also email anyone with whom you have express consent or inferred consent.

You can get express consent a number of ways, like ticking a box on an application or form, joining a mailing list on a website, over the phone, or face-to-face.

Inferred consent comes if you exchange business cards and the person understands they are likely to receive email from you. If the address is made available publicly (e.g. on a website or phone directory) as long as it does not state that such messages are unwanted.

The only other caveat is that the message should be strongly relevant to the recipients title: e.g. you could send a message about accounting software to accounts@xyzcompany.com.au but you would not be able to justify an email about lip-gloss.

In all cases you still need to have an Unsubscribe facility as you may be pestering them, even if they are your customer.

Buying Lists

If you buy a list, it is still your responsibility to make sure the people on that list have consented. Inferring they have is not enough. ACMA (the Australian Communications and Media Authority) suggests that it’s okay to ask for written evidence of how they pulled the list together. If the list turns out to be SPAM, you’re liable.

Can I email a List and then have them Opt-In?

ACMA states: “You cannot send an electronic message to seek consent: this is in itself a commercial message, because it seeks to establish a business relationship.”

The SPAM Act prohibits address harvesting software. If your list is a random collection of possible addresses, this will not be legal.

Many Email Service Providers such as Mail Chimp, Constant Contact, Aweber may ask for evidence that you have obtained consent from the people on your list.

Breaches

Penalties for breaching the Act are stiff. You can be fined up to $220,000 for a single day’s breach. If you contravene the Act again, the fines can increase upwards of $1 million.

Here is a copy of the Australian Communications Authority’s SPAM ACT: A Practical Guide for Business.