Firestarter

In my last article I talked about the importance of permission - from a marketing perspective. In this article I discuss how “permission” or as it called in the statute “consent” is legally required in Australia.

This article contains a condensed description of the Australian SPAM Act. Of course we don’t hold ourselves out as experts on the law but recognise that in reality no-one in business will actually read the act unless it is a core part of your business (i.e. email marketing services). This should serve to condense the information into a usable and easy to understand format. However, we do suggest that you seek your own independant advice for your own particular circumstances.

This article was contributed by Kevan Baker of FireStarter. Kevan’s contact details can be found at the end of the article.

Any commercial electronic message you send must have been sent with the prior consent of the recipient. If this condition is not met, the message is classified as spam.

The consent condition is also referred to as the ‘opt-in’ condition.

There are two possible types of consent that may apply:

• The recipient may give their express consent; or under certain circumstances,
• Their consent may be inferred from their conduct and ‘previous, existing business or other relationship’

In any case, a message recipient can withdraw their consent simply by unsubscribing, or by contacting your business and asking you not to send you any further messages. This request must be honoured within a specified time limit (see the ‘Withdrawal of consent’ section at the bottom of this page).

Express consent (Opt-in)

Examples of situations where a person may have given their express consent to receiving commercial electronic messages from your business include instances where:

• The person has specifically requested such material (either verbally or in writing) from your business
• The person has voluntarily added their electronic address to a mailing list compiled by your business, where it is clearly understood that future commercial electronic messages may be sent to that person’s electronic address
• The person has voluntarily given their electronic address to your business over the telephone or in writing, where it is clearly understood that you may send future commercial electronic messages to that address
• The person has voluntarily entered into an agreement with a third party to have their electronic address provided to your business to use for marketing purposes

Inferred consent

Under certain circumstances, consent to receiving commercial electronic messages from your business may be inferred from a person’s conduct and ‘existing business or other relationships’.

This ‘inferred consent’ generally falls into two categories: where a work-related electronic address has been conspicuously published; or where a pre-existing business relationship exists. 

Note that conditions apply in both cases, as outlined below.

Conspicuous publication of a work-related address

A person’s consent to receiving commercial electronic messages may be inferred where:

• They have conspicuously published their work-related electronic address in the public domain (e.g. on a web site or brochure), without stating clearly that they do not wish to be sent commercial electronic messages at this address and it would be reasonable to assume that the address was published with their consent. For inferred consent to apply, the commercial electronic message must be directly relevant to their work.

Note here that:

• A person’s consent to receiving commercial electronic messages can not be inferred from the mere fact that they have published their electronic address on a web site
• A person’s consent can not be inferred if their work-related address is published conspicuously in the public domain, but is accompanied by a message stating that they do not wish to receive commercial electronic messages
• A person’s consent can not be inferred from the mere fact that they have published their electronic address in an online environment that is not generally available to the public, for example a chatroom or subscriber web page
• A person’s consent can not be inferred from the fact that their address has simply been published in a public resource such as the Yellow Pages or the Electoral Roll

Pre-existing business relationships

In certain circumstances, a person’s consent to receiving commercial electronic messages may also be inferred where they have a pre-existing business relationship with your organisation, and as part of that relationship have knowingly given your organisation their electronic address.

Examples of when consent could reasonably be inferred from pre-existing relationships include instances where a person:

• Holds shares in your company
• Holds a subscription to a magazine or newspaper you publish
• Is an account holder with your bank; a financial member of your club; a subscriber to your superannuation body, a member of your professional association, or an employer/employee/contractor of your organisation
• Is a subscriber to a particular service you provide – for example, has a contract with your phone company; or is a registered user of an information, advisory or online service you provide
• Is a utility/rate payer with your utility company, or relevant government body
• Has given your business their electronic address with the expectation that it will be used in legitimate transactions and associated communications – for example online banking/online business
• Has given your business their electronic address when purchasing a product with ongoing warranty or service provisions; and your business then sends them electronic messages related to the warranty and service of that product
• Has handed over their business card, containing their electronic address, to a representative of your business; and your business then sends that person commercial electronic messages that are directly relevant to their work

Examples of situations where despite having a pre-existing relationship with your business, a person’s consent to receiving commercial electronic messages from you can not be inferred include instances where they have merely:

• Bought a tee-shirt or groceries from a business that you own, work for, or otherwise have a commercial interest in
• Attended a concert, performance or movie that your business has managed, marketed or otherwise has a commercial interest in
• Used a brand of ubiquitous software your company manufactures, sells or markets
• Made a purchase or transaction from your business as an anonymous entity

Withdrawal of consent (Opt-out)

A person can withdraw their consent to receiving commercial electronic messages simply by contacting your business and stating that they no longer wish to receive such messages.

Under Australian law, all commercial electronic messages must now have a functional ‘unsubscribe’ facility: see Spam – Business information: ‘How can I avoid sending spam? A person who wishes to withdraw their consent, i.e. does not wish to receive any further electronic messages from your business, can simply choose to use this unsubscribe function. Your business must honour any unsubscribe request within five business days.

Alternatively, the person who has received the message may contact your business by telephone or in writing to request that you do not send them any more messages.

In this case, the person’s withdrawal of consent takes effect in five business days. Under the Spam Act, your business must honour all withdrawals of consent regarding commercial electronic messages within this specified time.

I hope this has provided some guidance, please note our disclaimer below!

If you’d like to know more about what you’ve just read, please contact either at kevan@firestarter.com.au.

Disclaimer: The information on these pages should not be relied upon as legal advice; the reader should obtain independent legal advice based on their particular circumstances.