Spam Emails No More? Major Retailer Pays The Price

Home Blog Spam Emails No More? Major Retailer Pays The Price

Published by Preston Law on 15/03/2021

While the number of marketing emails you receive every day may make you think otherwise, there are actually rules that Australian businesses are required to comply with when it comes to their marketing messages and emails.

The Spam Act

The Spam Act 2003 (Cth) (Spam Act) establishes a scheme for regulating commercial email and other types of electronic messages (such as text messages). The Spam Act requires that Australian businesses, among other things:

  • obtain permission to send marketing emails or messages from the person who will receive them; and
  • only send marketing messages or emails that:
  • identify the business as the sender;
  • contain the business’s contact details; and
  • provide clear and functional unsubscribe options. For example, an email that contains the message “if you no longer wish to receive these emails, please contain the ‘unsubscribe’ button below” is considered a clear unsubscribe option.

A person can give consent to receiving marketing material expressly (eg, by ticking a box on a website) or it may be inferred (eg, when a person has a provable ongoing relationship with a business and the marketing is directly related to that relationship).

A business cannot rely upon contact information provided by a person for a very specific purpose for marketing purposes too. For example, a bar that receives a patron’s contact details for COVID contact tracing purposes cannot then use that information to send out promotional material regarding upcoming functions and events.

When a business gets it wrong

The Australian Communications and Media Authority (ACMA) recently undertook an investigation into major online retailer, Kogan, following receiving a number of consumer complaints that Kogan failed to provide a functional unsubscribe option. Following the investigation:

  • it was found that Kogan had sent more than 42 million marketing emails to consumers that contravened the Spam Act. The marketing emails sent by Kogan did not allow recipients to unsubscribe without setting a password and logging into a Kogan account as the unsubscribe button in the emails themselves did not work. 
  • Kogan was issued with a $310,800 infringement notice for its contravention of the Spam Act; and 
  • Kogan agreed to provide ACMA with an enforceable undertaking (effectively, an enforceable promise) to take certain steps to ensure its future compliance with the Spam Act, including: 
  • appointing an independent consultant to review its procedures, policies, training and systems to ensure that Kogan receives, records and actions all unsubscribe requests in accordance with the Spam Act; and 
  • training all personnel that may be, or are currently responsible for, creating or sending marketing material, to ensure compliance with the Spam Act.

The Kogan matter serves as a reminder to businesses of the importance of thinking about more than just your content when it comes to marketing material.

If you require legal advice in relation to how the Spam Act may affect your business, please contact our commercial law team in Cairns.

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