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Are you sending email marketing or spam? A quick guide to the Spam Act

Monday, 22 July 2013 | By Lachlan McKnight

Earlier this year, the team at LegalVision gave us some helpful tips on the legal basics of starting a new business.

Over the coming weeks, we’ll look at legal matters that can arise for a new business once it’s up and running.

Here, Lachlan McKnight, chief executive of LegalVision, asks if your email marketing could cross the spam line.


Are you a spammer? You may not think you are, but many businesses do engage in activities that breach the Spam Act 2003.


Most start-ups employ a marketing strategy which involves sending out weekly newsletters, advertising special offers over emails and attempting to convert visitors or potential leads into paying customers via email. Email marketing is a totally legitimate (and cost effective!) way of driving traffic and increasing revenues, but it’s also fair to say that this marketing channel is often abused.


This article provides a checklist for businesses engaged in email marketing. Read it to make sure you’re not in breach of the law.


Does the Spam Act cover any email I send?


In short, no. The Spam Act only covers ‘commercial’ electronic messages which:


  • advertise or promote investment opportunities or the supplier of investment opportunities;


  • advertise or promote the supply of goods or services or the supplier of goods or services; or


  • assists a person to obtain property or commercial advantages in a dishonest manner.


It’s also important to note that it only covers emails sent from or to an email address with is accessed in Australia.


Finally, don’t imagine that sending individualised emails necessarily means you’re not breaching the Spam Act. Any email sent from a database is a type of communication covered by the act.


How do I make sure I’m not in breach?


There are three prerequisites to ensure the emails you are sending out to potential leads are not in breach of the Spam Act:


  • ensure you have the addressee’s consent


  • provide an appropriate unsubscribe function


  • ensure you clearly identify your business as the sender of the email




In short, you need to make sure anyone you’re addressing an email to has consented to receiving it. This consent can be inferred through the recipient’s conduct or be expressly provided.


Lots of start-ups send out weekly newsletters to customers, updating them on the latest deals and products on offer. Arguably, your customers haven’t consented to receive these sorts of emails, which could be deemed spam.


In order to avoid this issue, it’s a good idea to advise all visitors and customers to your website that by providing you with their email address they are consenting to receive marketing emails. You can do this in your website terms and conditions.


Unsubscribe function


It’s important that you include an unsubscribe function in any marketing email you send out. Most email marketing solution providers, such as Mailchimp and Campaign Monitor, automatically include such a function.


In brief, the unsubscribe function needs to be (i) clearly worded, (ii) keep working for a minimum of 30 days, (iii) allow a reply to the sender, (iv) low or no cost.




Finally, you’ve got to make sure that the sender of the email (you!) is correctly identified. If you’re sending emails on behalf of a company you’ve got to make sure that the company’s details are provided.


Exceptions to the rules


There are a number of exceptions to the above-mentioned rules, but they probably don’t apply to you as a start-up or SME. Charities, government bodies, political parties and certain other organisations can avoid certain obligations under the Spam Act.


To conclude


It’s quite possible you could be in breach of the Spam Act. Make sure your website Terms and Conditions and Privacy Policy authorise you to market to anyone giving you their email address, and most importantly, don’t send your emails to people who haven’t asked for them!