What is the relevant law(s) in Australia?

According to the Australian Communications and Media Authority 2023 The Spam Act 2003 and Spam Regulations are the key laws to consider when understanding how to be compliant.  The website does go to say that failure to be compliant can lead to be “enforcement action”.

Goundan 2022 references the Australian Consumer Law, Privacy Act 1988 and the Australian Privacy Principles as laws to be considered as well.

These laws discuss various regulatory conditions to creating marketing email lists. 

What is Data Scraping?

In Siganto’s 2022 publication, the term “Address-harvesting software” is defined as software programs specifically engineer to scour the internet, locate email addresses, and collate them into a comprehensive list for the purposes of commercial marketing.  This operation is frequently termed “scraping,” and it is imperative to note that not only is it legally prohibited in Australia, but it also controversial.

The underlying implication here is that the mere fact that email addresses are publicly available does not grant carte blanche for their inclusion in your mailing system. Nonetheless, Siganto in 2022 proceeds to suggest the lawful methods for incorporating email addresses into your email list under specific condition derived from publicly available information.

It is within the bounds of the law to compile a list from information openly accessible to the public. The Office of the Australian Information Commissioner (OAIC) stipulates that personal information may be employed for direct marketing purposes if it is soured from channels such as:

• “A public record, such as a telephone directory. 
• A membership list of a business, professional or trade organisation.  
• An online, paper, or phone survey or competition.  
• An online account that shows your purchase history or browsing habits. 

It would also include generic email addresses contained on public websites, such as hello@privacy108.com.au or contact@xyz.com.au.  “

(Siganto 2022)

How to add email addresses legally

Now that what not to do has been addressed it is time look at what to do.  In every article I have read and referenced in this piece, there is a prominent theme – Consent.

Consent

Before adding an email address businesses need to make sure consent has been given and that the recipient on giving consent understands that marketing materials and promotions will be sent to them.

To complicate this matter further there are 2 types of consent written into the Spam Act 2003 – Express Consent and Inferred Consent.

The Australian Communications and Media Authority 2023 define Express and Inferred Consent as

Express Consent

“A person who gives express consent knows and accepts that they will receive marketing emails or messages from you. This is best practice when it comes to consent.

People can give express consent by one of the following:

• filling in a form
• ticking a box on a website
• over the phone
• face to face

You cannot send an electronic message to ask for consent, because this is a marketing message.

Keep a record when a person gives express consent, including who gave the consent, when and how.

Under the Spam Act, it’s up to you to prove that you have a person’s consent.”

Inferred Consent

“In some circumstances, you may infer that you have consent to send marketing messages if the recipient has knowingly and directly given their address and it is reasonable to believe they would expect to receive marketing from your business.

This is usually when a person has a provable, ongoing relationship with your business, and the marketing is directly related to that relationship.

For example, if someone has subscribed to a service, has an account or is a member, and the marketing is directly relevant to the relationship – such as a person’s savings bank telling them about another savings account with higher interest. It would not cover the bank trying to sell them insurance products.

It does not cover sending messages after someone has just bought something from your business.

Inferred consent is not as reliable as getting someone’s express consent.”

Moyle 2023 discusses ways that consent is not allowed to be collected:

• “Sending an unsolicited email asking someone to give consent to receive commercial messages from you.
• Getting connected via LinkedIn and assuming that means the other person would love to be added to your mailing list.
• Pre-ticking boxes for people to join your mailing list (either on paper or on websites).
• Assuming silence means consent – adding someone to a list and assuming because they didn’t object that everything is hunky-dory.
• Getting someone else to consent on their behalf.
• Picking up business cards or brochures from a networking event from someone you didn’t meet and verbally get consent from, and assuming this gives you consent to email them.
• If they didn’t know what they were consenting or were not capable of making a decision of whether or not to consent.”

Responsibilities when creating an email list

To ensure you are creating a list that follows best practice you need to ensure that emails meet the following requirements.

The Australian Communications and Media Authority 2023 requires:

1. The email must identify you as the sender. This can be done by
   1. Including your name or the business name
   1. Including contact details for your or the business
   1. a. and b. apply even if you are using a third party to manage your emails.
   1. Use the Correct Legal Name of the business and include your Australian Business Number (ABN)
   1. All information is to be correct for a minimum of 30 days after sending the email.

• Unsubscribing MUST be easy.
  • All emails must contain ‘unsubscribe’ options that:
    • Clearly state the unsubscribe process.
    • Requests to processed within 5 working days.
    • Businesses are not allowed to charge a fee for unsubscribing.
    • Unsubscribe options must be functional for a minimum of 30 days from sending the message.
    • A person unsubscribing is not to be required to provide additional information, or to create an account to unsubscribe.

Goundan 2022 takes this further by discussing the requirements for email marketing und the Australian Consumer Law which works in conjunction with the Spam Act.

These additional responsibilities when sending marketing emails include:

1. Making sure product information is correct and reliable.  Do not provide misleading information about any products or services.
2. Ensure that any terms and conditions are fair and reasonable to the consumer.
3. Ensure refunds, repairs and replacements are available.
4. Ensure Prices are advertised correctly.

Conclusion

In summary, businesses engaging in email marketing in Australia must navigate a complex regulatory framework that prioritizes consent, identification, and ease of unsubscribing while also upholding consumer rights as stipulated by Australian Consumer Law. Comprehending and adhering to these laws and principles is essential to conducting ethical and legally compliant email marketing campaigns in Australia.

References

Australian Communications and Media Authority 2023, ‘Avoid Sending Spam’, Avoid Sending Spam, viewed 23 September 2023, < https://www.acma.gov.au/avoid-sending-spam>.

Goundan, S. 2022, ‘A Guide To Email Marketing Laws In Australia’, A Guide To Email Marketing Laws In Australia, Legal, viewed 23 September 2023, < https://sprintlaw.com.au/articles/email-marketing-laws/>.

Moyle, I. 2023, ‘Heart Harmony Communications’, Spam: Are Your Emails Breaking the Law?, website design business, viewed 23 September 2023, < https://www.heartcomms.com.au/emails-breaking-the-law/>.

Siganto, J. 2022, ‘Privacy 108’, Email Marketing Compliance Do’s & Don’ts When Buying Lists and Data Scraping, privacy company, viewed 23 September 2023, < https://privacy108.com.au/insights/email-marketing-compliance-dos-donts/>.

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