We often see examples where businesses misunderstand or misinterpret their responsibilities under spam and telemarketing laws.
These errors can lead to frustration and reputational damage to your business from a customer perspective, as well as possible enforcement action and significant financial penalties from the ACMA. Some examples and our advice on these issues is below.
We have had complaints about alleged e-marketing messages sent by businesses attempting to regain customers who have cancelled subscription services (retention messages). These messages are commercial and must comply with the Spam Act.
Businesses need to have a clear understanding about what makes an electronic message ‘commercial’ under the Spam Laws. Breaches can occur even if a message is mostly ‘factual’. This can include a bill, invoice or other account or service-related message, and also some promotional or sales content.
So-called ‘welcome journeys’ are not exempt from the law, as they often contain commercial content. We see businesses that do not have adequate consent and unsubscribe processes for automated SMS and email ‘welcome journeys’ sent to new and prospective customers. ‘Welcome journeys’ must comply with the spam rules.
SMS unsubscribe and alpha tags
We are seeing instances where businesses are requesting that people reply to an SMS Sender ID (a message header that is usually a shortened business name) to unsubscribe. The problem is people generally can’t reply to an SMS with a Sender ID, which means that these unsubscribe processes don’t work, and will therefore break the law.
Consent and paperless receipts
Many businesses are moving towards paperless receipts and are sending consumers proof-of-purchase electronically. This can sometimes result in consumers being added to marketing lists at the same time, without their apparent consent, which may breach the spam laws.
Unsubscribe issues and automated gathering of addresses
The ‘unsubscribe’ function is a common cause of non-compliance, as are consent issues around automated gathering of addresses.
Does your business automatically add consumer email addresses to your marketing lists after a one-off purchase, or if the consumer has simply submitted an email enquiry? This may be a breach of consent requirements under the spam laws.
Some businesses may be breaching spam laws by sending email and SMS messages to encourage or entice consumers who have withdrawn their consent to receive marketing messages to become a customer again or ‘resubscribe’.
Information required to unsubscribe
Unsubscribe facilities must be straightforward and easy to use. This means that consumers must not be required to provide their personal information or log-in to an account to opt-out of receiving marketing messages.
Businesses often outsource their telemarketing and e-marketing to third parties or purchase marketing lists from external providers. Businesses must be aware however, that they cannot outsource their obligations under the spam and telemarketing laws through these arrangements. Ultimately, the business is responsible.
Sending electronic marketing is a normal part of business. However, businesses of all kinds and sizes must be aware that it is their responsibility to ensure that consent has been obtained from consumers before they send them marketing messages.
There are a number of requirements around providing consumers with the option to unsubscribe from commercial messages that businesses often don’t meet. Learn more about these requirements and common mistakes.