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Infringement notice: Regulator ACMA takes action against spam sent by major retailer (2 July 2020)

There is a timely reminder in the news today about spam. The Australian Communications and Media Authority (ACMA) has issued an infringement notice to major retailer Woolworths in respect of spam – commercial electronic messages sent without the recipients’ consent. Apparently consumers attempted to unsubscribe but continued receiving messages.

Although ACMA’s media release states that it detected as many as 5 million breaches of the Act, the infringement notice issued to Woolworths cites only 798 contraventions, nonetheless with a significant financial penalty of $1,003,800. Woolworths has also given a court-enforceable undertaking in relation to reviewing and ongoing compliance with the Act.

The media release also states that in the past year, ACMA has issued other infringement notices and collected penalties from other businesses.

The Spam Act 2003 has now been around for quite some time. It prohibits the sending of “commercial electronic messages” without the recipient’s consent. It applies to businesses as well as individuals.

In summary:

  • Spam includes messages sent by email, SMS, instant message services, and similar (but does not include voice calls – that’s separately regulated by the Do Not Call Register)
  • To be categorised as spam, messages must have a commercial purpose (based on the content and presentation of the message), which includes advertising goods and services or their suppliers/providers, advertising land or an interest in land, or promoting business and investment opportunities.
  • To be regulated under the Spam Act, messages must have an “Australian link”, including the sender or recipient being physically in Australia, the computer sending or receiving the message being in Australia, or the person authorising the message being in Australia.

Consent can be express, or can be inferred from the business relationship. However, simply having done business with someone will not likely, by itself, constitute inferred consent to receive commercial messages from then on.

Commercial electronic messages also must:

  • have a clear, functional opt-out / unsubscribe function; and
  • contain accurate information to identify the sender, and
  • contain information about how to contact the sender.

From my own anecdotal experience, receiving spam is still not uncommon in Australia, even from well-known and large businesses. Even this morning, during the preparation of this post, I received an unsolicited commercial SMS from a major national retailer. I did provide my phone number to that retailer for the purpose of facilitating delivery of goods that I recently purchased, but did not consent to receiving commercial electronic messages. I suspect that this may be a common way that consumers unwittingly end up on marketing databases.

As seen, ACMA has the power to issue infringement notices. It can also accept court enforceable undertakings, issue warnings, or the action in the Federal Court seeking injunctions and civil penalties.

And no doubt, being caught out for spamming is also harmful to the reputation of businesses.

Key takeaways:

The regulator (ACMA) is apparently active, and has the power to issue infringement notices and take court action against spam.

Although it may be tempting to increasingly use electronic communications to draw out consumers after shut-down hibernation, before doing so ensure that all systems are spam compliant:

  • Have the people on your marketing database all consented to receiving commercial electronic messages? If not, remove them.
  • Do your message templates contain the required identification and contact details?
  • Does your email / message marketing system have a functional opt-out / unsubscribe facility?
  • Are your staff trained not to add customers’ email addresses and phone numbers to marketing databases without consent?

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