Red door with no junk mail sign

Last updated: September 1, 2023

Marketing emails and text messages are an affordable and effective way of spreading word of your business, products and services. But if done incorrectly, it can become very costly, as some businesses have recently learnt.

In August online food delivery service DoorDash was hit with a $2 million fine after the Australian Communications and Media Authority found they had breached spam laws. Over a nine-month period last year, the business was found to have sent more than 566,000 promotional emails to customers who had previously unsubscribed from the marketing messages. An additional 515,000 text messages were sent out without an option to unsubscribe. And they’re not the only business to have found themselves in hot water of late over their marketing messages. In June, auto repair retailer mycar Tyre & Auto received a $1 million fine for sending marketing material without a functioning unsubscribe button. That same month, the Commonwealth Bank was fined a record $3.55 million for failing to comply with spam laws.

WHAT ARE THE RULES?

If you are sending any marketing emails or SMS, there are a few rules that you must make sure you abide by before you hit ‘send’.

CONSENT MATTERS

You must first have consent from the recipient before sending any marketing messages. There are two types of consent for marketing:

Express consent – This means the person signed up to receive email marketing from you, usually because they filled out a form (either online or on paper), or gave consent in person or over the phone.

Inferred consent – Even if the person hasn’t ticked a box to say they give you permission to send them marketing material, you may have inferred consent if they have otherwise given you their address and it’s reasonable to expect that they would then receive marketing messages from your business. For example, this may be because they have purchased products from you previously or have submitted an enquiry requesting a quote.

IDENTIFY YOURSELF

This one is pretty simple – all of your marketing messages must identify your name or your business name, and must include up-to-date contact details.

GIVE THEM THE CHANCE TO OPT OUT

Every marketing message you send must include an option for recipients to easily unsubscribe from future marketing messages. For SMS this is usually done by letting people know they can reply with ‘STOP’ to no longer receive these messages (first make sure you can receive reply texts), or for email this usually takes the form of a clear link at the bottom of the page to unsubscribe. However you do it though, the steps to unsubscribe must be clear and simple to follow.

Once someone unsubscribes from receiving marketing messages from you, you must remove their address from your distribution list and stop sending them any marketing messages within five business days. This is why careful management and maintenance of your distribution lists is essential.

WHEN IS AN EMAIL FROM YOUR BUSINESS NOT SPAM?

For the sake of spam laws, it is important to note the difference between marketing messages and transactional messages. If someone orders a product from you and you then email them confirmation of their purchase and updates on the status or delivery of their order, this is a transactional message, and is not subject to spam laws. The same applies for payment reminders and appointment confirmations. It means you do not need to provide them with an option to unsubscribe. You are also able to continue sending these types of messages to people who have previously unsubscribed to your marketing messages.

For more information about your responsibilities when it comes to marketing and spam, visit the Australian Communications and Media Authority website: www.acma.gov.au/avoid-sending-spam

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