In the first part of this two-part article, we took a look at the heart of the Australian Spam Act and how it differs from other legislation. I spent some time on the types of consent as well as the best practices associated with the consent, identification and unsubscribe requirements of the Act.
In this second part, I conclude with a description of message types, together with some examples, as well as a brief discussion on penalties and international implications. No article is complete without a call to action, and this piece is no exception.
Commercial and Factual Electronic Messages
Under the Act, there are two types of electronic message: commercial and factual. Bear in mind that the law applies to emails, SMS, IM and MMS, as well as other forms of electronic messaging, but not to faxes, telemarketing or Internet pop-ups.
Commercial Electronic Messages
A commercial message is one that contains an offer to take part in a commercial transaction or provides you with a link to a place where a transaction is offered. This means that if you have any kind of commercial content within an electronic message, then you must comply with the Act.
Commercial messages would include the following:
- New product release information
- Details of promotions or special offers
- Details on real-estate offerings
- Invitations to special events, and so on…
In fact, any time someone includes information that you and I would both interpret as being commercial. Links to Web sites that contain commercial content would generally be enough to render a message commercial.
These messages contain absolutely no commercial content whatsoever. They do not contain an offer, and they do not provide you with a commercial link. Examples:
- An accountant sending out a tax office ruling
- A lawyer sending information on some aspect of law that has recently been introduced or changed
- A volunteer organization or Neighborhood Watch sending factual information to people in their area (these can be sponsored by the local newsagent)
- A fishing club sending details of tides or what bait to use, etc.
All the above can include the following:
- Comment directly related to the factual information
- Name, Web and contact details of the person or individual who authorized the message
- The name and contact details of the author
- The name, logo and contact details of the author's employer (if applicable)
- If the author is a partner of a partnership—the name, logo and contact details of the partnership
- If the author is a director or officer of an organization—the name, logo and contact details of the partnership
- If the message is sponsored—the name, logo and contact details of the sponsor
- Their address details and Web site address—but not commercial offers
All factual electronic messages must include information about the individual or organization that authorized the sending of the message.
Every commercial electronic message or factual message must contain accurate details of the individual or organization that authorized the sending of the message. This means that you cannot use a false email address or business name. You should use your own or business email address.
The information about the individual or organization that authorized the sending of the message must be reasonably likely to remain accurate for a period of 30 days. The identification is of the person who sends the message—and this does not mean the service provider. You will often see that an email has come from a list server. Emails with only that sort of detail in the "from" line could breach the Act and will probably get filtered as Spam in any case.
Every commercial electronic message must contain a working unsubscribe link or method that allows users to easily remove themselves from your lists. This can be an automated one-click link, an email form link or a message at the foot of the email telling the recipient that if they wished to unsubscribe they should reply with the word "unsubscribe" in the subject line.
When you receive a request/demand to remove someone from your lists, you MUST do so within five working days of receipt of the request/demand. In many businesses without any form of automation, this means religiously checking for unsubscribes on a daily basis. Under the Act, even if someone has previously given their consent, they can withdraw it at any time by email, post, phone or in person.
Unsubscribe Best Practice
On receipt of an unsubscribe request, you should as a matter of best practice respond to the person making the request with an acknowledgement of their requirement. You can also use the opportunity to ask the person within the email why they are leaving your list. The Act gives you five days to remove their details, and the market information gleaned would be of good value.
It is critically important to make sure that you keep good records of all of your subscriptions and unsubscribes.
The Australian Spam Act has a number of levels of penalty, and the Australian Communications Authority (ACA) takes a staged approached to enforcement:
- When a legitimate business appears to be breaching the Act, the ACA will generally send an advisory letter informing that a complaint has been made and requesting a reply.
- A formal warning again pointing out a complaint and reasons; you must respond to that letter.
- Infringement notice with a fine.
- An individual can be fined up to $22,000 a day.
- A business can be fined up to $44,000 a day, with a maximum of $1.1 million a day for repeat offenders.
- Spammers can be made to forfeit any profits they may have made from their spam activity.
- Victims of spam can be awarded damages by the courts.
Under The Australian Spam Act, it is prohibited to buy, acquire or use email-harvesting software for the purpose of sending spam.
You must not use harvested email addresses to send commercial electronic messages.
The Act does not require that you include full details of your physical address within each commercial electronic message. It does require that you include a method whereby you can be contacted. (The physical address is, however, a requirement within the draft Australian "eMarketing Code of Practice.")
There is no reference within the Act to the nature of subject lines.
There is no reference within the Act regarding the nature of the content of the commercial electronic message.
The Act does not specify the keeping of records. What it requires is the substantiation of the fact that you have consent and that you comply with every aspect of the law.
Keeping records is crucial, and the risks of relying on spreadsheets that sometimes get overlooked are too great. This will mean a burden for many companies, but it is part of the price we have to pay.
The Results So Far
Between April 10 and October 17, 2004, the ACA received close to 60,000 complaints, with just 900 of those being about spam from within Australia. The ACA has issued advisories and warnings to approximately 180 people in Australia. The next step for some of those will be infringement notices with penalties, followed by court action.
According to Spamhaus, the number of major spammers from Australia has decreased dramatically, with at least one well-known spammer moving off shore. Of the top 200 spam organizations listed by Spamhaus, Australia now has four.
The challenge for all marketers who send emails across borders is to make themselves aware of the different legislative requirements. There are already a number of examples of cross-border cooperation leading to prosecutions in the US, EU and here in Oz.
Ever-closer cooperation between legislators from around the World, supported by organizations such as the OECD and ITU (United Nations), will inevitably lead to a common set of rules and legislative aims.
From a marketer's perspective here in Australia, we need to understand and observe the US CAN-SPAM Act and the issues of subject line, content and physical address details. We also have to be aware of the requirements of the EU directives.
From the US perspective, marketers sending emails into Australia need to get a handle on our opt-in legislation and the need for consent, plus the aspects of commercial and factual messages.
Summary and Conclusion
The bottom line is that under The Australian Spam Act:
- You must have one of the two forms of consent: express or inferred.
- You must clearly identify the person or organization that authorized the sending of the message.
- You must include a functional unsubscribe facility.
- You must adhere to the message-type rules.
- You must not acquire, use or borrow email-harvesting software.
- You must not use harvested email addresses.
- You must be able to substantiate receipt of consent.
That really is all there is to it. The Act is relatively easy to comply with, although there is a requirement for a greater focus on recordkeeping. It maybe a little early to assume outright success against spammers at this stage, but the signs are very encouraging.
Imagine how much could be achieved if there were an international group of e-marketers who could work on the issues for cross-border campaigns as well as a global e-marketing code of practice.
Note: Information in this article is correct at the time of going to print, but there may be subsequent changes to legislation and regulations that may occur. Regularly check for any changes with the Australian Communications Authority, www.spam.aca.gov.au.