Email, phone & SMS marketing laws | Q&A with Jeremy Fenton from the Australian Communications & Media Authority

As a small business, email, phone and online marketing offer a cost-effective way to reach customers and expand your database. But there are laws around what you can and can’t do when sending emails or calling potential customers.

Realise Business recently caught up with Jeremy Fenton, Exec Manager of Content, Consumer and Citizen Division from the Australian Communications and Media Authority (ACMA) to get the facts.

What are the laws that cover what you can and can’t do with email, SMS, and phone marketing communications?

The Spam Act 2003 requires that commercial electronic messages (e-marketing via email, SMS, MMS and instant message) can only be sent with the recipient’s permission (or consent) with accurate information about who authorised the sending of the message, as well as details on how to contact them, and a functional ‘unsubscribe’ facility (unsubscribe requests must be honoured within five working days).

The Do Not Call Register Act 2006 enables consumers to opt-out of receiving certain telemarketing calls on their personal use numbers. It is against the law for unsolicited telemarketing calls to be made to a number listed on the Do Not Call Register unless the call recipient has given permission to be called.

How do I obtain consent from somebody to add them to my database?

There are two types of consent – express and inferred.

Express consent is when a person directly agrees that they want to receive messages. For the purposes of telemarketing, express consent lasts for a period of three months.

Express consent can be obtained in many ways, including via online forms, in person or over the phone as long as it is clear that consent is being sought for marketing purposes, and the recipient is aware they may receive commercial messages from your business. You cannot email people without their consent in order to obtain their consent because that type of message will likely be in breach of the Spam Act.

Inferred consent usually depends on there being an existing or current relationship between a business and a consumer, and the consumer has a reasonable expectation of receiving the messages.

It is up to the message sender to prove they have consent. Keeping up-to-date records on all your marketing activities is essential, including recording where, when and how consent was obtained.

Can I add an email to my database that is advertised on a company’s website as contact information?

Yes. Online publication may be a form of inferred consent where:

  • someone has published their work-related electronic address on a web site or in a brochure
  • the electronic address is published without a statement that that they do not wish to be sent e-marketing messages at this address
  • it is reasonable to assume that the address was published with their consent.

For inferred consent to exist, there must be a strong link between what you are promoting and the recipient’s role.

A message must be directly related to the person who opens the message, not just relevant to the business as a whole. For example, it may be difficult to show that a particular product or service is directly relevant to the work of the recipient of a generic email address, such as the usernames info@ or enquiries@

In order to prove consent, a copy of the publication should be kept as proof the electronic address was published and that it was reasonable to assume it was published with the agreement of the business.

If I purchase an email list from a supplier can I just email the names and presume I won’t be spamming people?

It is the responsibility of the sender to ensure whether consent has been obtained from each person on such lists.

If I am connected with somebody on LinkedIn, Facebook or Twitter, does that mean they have provided inferred consent for me to market to them via email, SMS or phone?

The connection alone is not enough to infer consent, there generally must be a strong existing business relationship, or online publication of work-related contact information. The recipient must have a reasonable expectation of receiving the marketing material.

In general, consent is not needed to make telemarketing calls to a business number, as they are not eligible to be listed on the Do Not Call Register.

If I meet somebody at a networking event and they give me their card does that mean I can contact them with marketing materials via email, SMS or phone?

Under the Spam Act, as long as the recipient is aware they may receive commercial messages from your business it can be considered express consent.

Consent cannot be inferred solely by the act of a person giving you their business card—inferred consent will generally depend upon an existing business relationship and the person must have a reasonable expectation of receiving your messages.

How do I find out if somebody is on the Do Not Call Register?

Businesses planning to make telemarketing calls or send marketing faxes must check their calling lists against the Do Not Call Register. Lists are ‘washed’ and returned to the businesses, identifying the numbers they can, and cannot, call or fax.  You can find out more here.

What do I do if someone makes a complaint about my company for spamming them?

If a consumer makes a complaint to the ACMA about an electronic message, the ACMA will assess whether the message is in breach of the Spam Act. The ACMA will usually contact companies to inform them of their legal obligations.

If a business receives contact from the ACMA, it is an opportunity to review their e-marketing practices in relation to the matters raised, including potentially:

  • Looking at how permission (consent) is obtained to send e-marketing messages, as well as the records kept to prove it.
  • Checking that messages contain sufficient information for a recipient to identify and contact the business.
  • Testing unsubscribe facilities, and keeping a record of the results.
  • Removing an email address or phone number from a marketing list within five days if you’ve been requested to do so.

Reviewing systems and processes may help to identify a potential problem early on, before it has the chance to become a larger issue.

If a business receives such contact, the ACMA encourages them to look at the matters raised and/or contact the ACMA for further information.

The ACMA is an active regulator and if repeat or systemic indications of non-compliance become evident, the ACMA may formally investigate. Where a breach is found, the financial penalties can be large.

Where can I find more information to ensure that I am complying with the law when conducting digital and phone marketing campaigns?

Further information about the Spam Act can be found at http://www.acma.gov.au/Industry/Marketers/Anti-Spam

Further information about the Do Not Call Register Act can be found at http://www.acma.gov.au/Industry/Marketers/Do-not-call-register

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