I am getting SPAMMED. For over one year I have been receiving emails from an overseas on-line store. I can’t unsubscribe. I can’t contact the company. I can’t make it stop. Sending SPAM messages can lead to large penalties but mostly it’s bad for business – because it’s annoying! SPAM laws apply to electronic messages, including email, texts and instant messaging. They also apply to communications sent from Australia or received in Australia. So my overseas online store serial pest is obliged to comply with the Australian laws.
The final factor triggering the laws is that the message is sent for the purpose of offering, advertising or promoting goods, services or an interest in land. This is not a sole purpose test and it is also a broad test based on the content and presentation of the message, including links embedded in the message.
So what are the laws?
- You must not send unsolicited commercial messages. When building your email list, make sure people want to be on it! While express consent is always best (e.g. Sign me up…) the law also allows for consent to be inferred, or implied. Consent might be implied because of your interaction, or relationship. If you publish an email address and invite the public to contact, (such as on your website) your consent is implied. Sorry, those unsolicited marketing emails via your website are not illegal!
- Commercial messages must include the contact details of the sender. Your contact information needs to be current and be an actual means of contacting you. The details must remain valid for 30 days after the message is sent. The law is silent on the type of contact details (e.g. Street address v email). My overseas SPAMMER includes a street address only – which is of no assistance to me in Australia as I can’t march in there and demand they stop.
- There must be an ability to unsubscribe. Now days most bulk email software automatically includes an unsubscribe button on all emails. However, notifying recipients by any means of how they can unsubscribe is what is required. This can be a direction to email you or respond STOP to a text message. The unsubscribe information needs to be clear, not hidden and it needs to actually work! This is where my SPAMMER is in breach as hitting unsubscribe simply doesn’t work.
What is the punishment?
Breaching the SPAM act is not a criminal offence. SPAMMERS face civil penalties which vary depending on if you are an individual or company and the significance of your breach. It can be up to $1.8 million for a repeat offender company and around $9,000 for a first time individual offender.
As a sole trader $9,000 is not insignificant… could that email really be worth it?
In Australia, ACMA regulates compliance with the SPAM Act. Other remedies available are injunctions or enforceable undertakings which is a contract imposing obligations on the offender.
Good luck with your commercial marketing and here is a link to my free TIP Sheet on how to avoid being SPAMMY: http://baselegal.com.au//wp-content/uploads/2013/07/Tip-Sheet-SPAM.pdf