The view among all professional marketers is unanimous. Spam is a worldwide problem that has to be taken on with a worldwide effort.

The US started the ball rolling in December last year with CAN-SPAM, followed closely by the implementation of EU Directives. This article, presented in two parts, looks at the Australian Spam Act, which came into force in April of this year. I'll look at how the Act is structured and how it's already making significant progress in the ongoing battle against spam.

Fundamentally Different

If I were to point to one major and fundamental difference between this act and others from around the world, it would be that the Australian Spam Act is "opt-in" and consent-based. Recipients cannot be sent commercial content via email, SMS, IM or other electronic communications without their prior express or inferred consent.

What the Act doesn't cover is fax transmissions or voice-to-voice telemarketing—that's the job of other legislation.

In short, the Act allows two forms of consent: express and inferred. It applies to two types of messages: commercial and factual.

In this first article, I'll review the two forms of consent and their effect on how marketers carry out their work. I will also look at best practices associated with the requirements of the Act.

In part two, I'll cover the two types of message that can be sent (and those that can't), plus implications for international, cross-border marketing campaigns. I'll also discuss an interesting call to action.

At the heart of the Act is this message: It is illegal to send "unsolicited commercial electronic messages with an Australian link."

In other words:

  • Messages for which no consent had been given
  • The content of which is commercial in nature
  • And which is transmitted electronically
  • With an Australian link

The last point means that the Act applies to messages originating from within Australia but being sent to any location, as well as being sent from any location to a place within Australia.

Express Consent

The Act says that there are two kinds of legal consent: express or inferred.

Express consent is given when, for example, people visit your Web site and register for your email newsletter or product update. They could do that via a subscription box that requires them to fill in their email address. If that has been done, then it's fine to send them commercial emails, because they have given you express consent.

You can also gain express consent when someone:

  • Fills in a hard copy form from a newspaper or magazine requesting commercial electronic messages be sent to them

  • Completes a registration form for accommodation and requests the receipt of future commercial electronic messages

  • Fills in a form when visiting a winery or other tourism-based operation and requests to be added to that operation's email list

  • Someone hands over his or her business card and asks you to send commercial information, as long as this information is specific to the request (a business card by itself is not sufficient to say that you have consent to send commercial information.)

  • Someone telephones or faxes you, requesting to be added to your mailing lists

  • Someone verbally requests to receive mail, providing you note the details: time, date and type of information requested

Important: permission is not for just any kind of information; it is for the information requested and no more. So if someone asks you for information on real estate, you are not entitled to send information on vitamin pills.

Best practice for express consent: The issue with a simple Web site subscription is that almost anyone could log onto the site and enter someone else's email address. This could lead to problems and complaints when that other person starts to receive commercial information from you.

Worst still, someone could maliciously enter many names into your subscription box, and you could be faced with an enormous task of cleaning up and making apologies. This can be extremely damaging to your business.

You can overcome the problem with an auto-responder email that is sent out when a person subscribes. The confirmed opt-in is a recognized best practice worldwide and a guideline under the draft Australian eMarketing Code of Practice.

The response email thanks subscribers for their subscriptions. By using such a system, you will find out very quickly how many of the email addresses subscribed were real; if they were not, they will bounce. If the email address was entered by someone else, then the addressee has the opportunity to unsubscribe from within the automatic response email.

The next method commonly used as a best practice is the double opt-in. This system uses the same auto-response email, except that it has a link to a special Web page to which the recipient is asked to go in order to confirm the subscription/email address.

This method results in a very solid list of subscribers. But it has to be said that when this method is used, you will probably not secure as many subscriptions: some figures cite reductions in subscriptions as high as 40%.

Inferred Consent

Inferred consent is a bit different. It effectively allows us to go out and prospect for new business and subscribers to our mailing lists.

You can infer consent in the following ways:

  • Someone has conspicuously published his or her work-related email address on a Web site or in a business directory or magazine. The exception is when there is a note alongside the email address specifically stating "No unsolicited commercial messages" or similar wording. However, the message you are sending must relate directly to the nature of the recipient's business.

  • You have an ongoing business relationship with an existing customer (a single purchase is not sufficient), and the conduct of the individual or business indicates that consent has been given.

Again, the meaning is clear: you can infer consent and send a commercial electronic message if someone falls into one of these categories.

These might be some examples:

  • Someone fills in a form when visiting a winery or other tourism-based operation and requests to be added to an email list.

  • Someone hands over a business card and asks you to send commercial information. (Again, the business card by itself is not sufficient to say that you have consent to send commercial information.)

  • Someone telephones or faxes you requesting to be added to your lists.

  • Someone verbally requests to be added (again, record date and time details).

As always, the permission granted is not for just any kind of information; it is for the information requested and no more.

If you make it clear on the sign-up page of your Web site that the subscriber will also be opted-in to receive commercial emails from third parties (or if you give them that option and they select it), then that's okay. This applies to both express and inferred consent.

What you cannot do is to make an assumption such as "I am an accountant; every business needs an accountant; therefore, I can infer consent from every business."

Nice try, but it is not allowable under the Act. The message must be related to the work of the intended recipient. In the case of the accountant, he could infer consent if the published address was that of a financial controller or someone who organizes contract accounting services.

Something else you cannot necessarily do is this: "You gave me your business card, therefore I can infer consent and send you commercial information." In general, this isn't allowed: someone could infer consent to send the card-giver information on just about anything. A card is not considered to be a conspicuous publication as a Web site or magazine. It is at the personal level and is not broadcast to everyone simultaneously.

However, in certain situations, such as networking meetings, which are set up to build business contacts and relationships, the exchange of business cards could constitute inferred consent; but the important thing to remember is that in this case the messages must pass the "reasonable expectation" test—the recipient must have a "reasonable expectation" of receiving such messages.

Again, no sending messages about vitamin pills when the networking meeting was related to real estate! (See the Goldfish Bowl example cited later in this article for another common example of what is acceptable for gaining consent at certain types of business meetings.)

Important to remember is that inferred consent only allows you to send commercial electronic messages that are related to the work of the person to whom you are sending the message, unless they tell you otherwise.

Best practice for inferred consent: In the case of express consent, the automatic confirmation or double opt-in is best practice. For Inferred consent, I suggest the following:

In the first email that you send to your prospect under the inferred consent rule, include something like the following statement:

I have obtained your email contact address from your Web site/magazine/directory and notice that you have the responsibility for purchasing computer equipment for your company. We are in that business and would like to keep you informed about our range and the promotional offers that we currently have. I have inferred your consent to send this email in the belief that you would be interested in our products. If this is not the case then please select the unsubscribe link at the bottom of this email.

Alternatively, at the head of the email, before the message starts, place something like this:

This email is being sent to you as a result of our finding your email contact details published in a trade magazine/directory/Web site, etc. Should you not wish to receive any further information from our company, please select the unsubscribe link at the bottom of this email.

If your business seeks permission to send commercial messages from third parties, it is a good practice to provide subscribers with a check box, but not pre-checked.

The Goldfish Bowl

Commonly used to attract members to lists, goldfish bowls (set out at trade shows or other gathering to amass business cards) have become part of business practice. They are still okay under the Act, provided that it is made clear with a written notice that everyone who leaves a business card or address details in the bowl is giving consent to be sent commercial electronic messages. There is also a need to display a privacy policy covering how the email addresses will be used, but that is covered by Privacy legislation.

The bottom line is that because of the use and insistence on opt-in, the Act has a strong deterrent effect on spammers. It is not legal here to send emails on the basis that you will receive them unless you tell the recipient otherwise: you must have consent, and you must be able to substantiate that consent.

All well and good for Aussie marketers, but what of the impact on their US and EU counterparts?

In the next article, we look at international implications for all marketers as well as the two message types and penalties under the Australian Spam Act.

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Gordon Cramer is a principal consultant in Actif Communications, Queensland (