In response to the federal government’s 2003 Spam Act, the Australian Direct Marketing Association held an anti-spam seminar in Sydney to discuss the new legalities of using electronic messaging for marketing purposes.
The Spam Act covers commercial electronic messages transmitted via e-mail, SMS, MMS, and instant messaging, and is specific about the way in which marketers can leverage those delivery methods.
In summary, the Spam Act 2003 – which will take effect from April 10, 2004 – outlaws unsolicited commercial electronic messages such that:
- Commercial electronic messages should be sent without the addressee’s express or inferred consent.
- The identity of the person or business sending the message should be clearly and accurately identified.
- An unsubscribe facility must be included in all messages.
ADMA’s CEO Rob Edwards said the association played a role in creating the spam legislation.
“All regulation and legislation is desirable in the problem of spam,” Edwards said. “However, no piece of legislation is perfect or guarantees compliance.”
Edwards conceded that government intervention hasn’t been “that good” when issues involving technology arise and said individual country laws on spam won’t save the global problem.
NOIE’s manager of online policy Lindsay Barton said the Spam Act was in response to the growing tide of spam, which is “greater than 50 percent of e-mail”.
“NOIE’s anti-spam strategies involve the technical, educational, and legal ways to deal with spam,” Barton said. “In drafting the legislation we aimed for clarity, recognition of legitimate business practices, low cost of compliance, and an international ‘hook’.”
The Australian Communications Authority (ACA) is the enforcement agency for the new “opt-in” spam legislation which does not cover more traditional forms of direct marketing like direct mail and telemarketing.
“The spam legislation covers electronic messaging with an Australian link,” Barton said. “This includes messages sent within Australia, sent from Australia overseas, sent from overseas to Australia, and sent from anywhere to anywhere but commissioned in Australia.”
Penalties for breaching the Spam Act range from a formal warning to a daily ceiling of $1.1 million for repeat offenders.
“NOIE now plans to co-ordinate an education campaign about the legislation and continue the development of regulations,” Barton said.
ADMA’s manager of legal and regulatory affairs Jodie Sangster detailed the difference between express and inferred consent when it comes to adding contact details to a marketing list.
“Express consent requires an ‘active step’ on the part of the recipient such as ticking a box to receive marketing material,” Sangster said. “Inferred consent, however, is based on a reasonable expectation that a customer will receive marketing messages as in the case of an existing relationship. For example, online banking creates an expectation that the bank will send you marketing material whereas buying a t-shirt does not involve a relationship.”
More information about the Spam Act 2003 can be obtained from ADMA and NOIE.