Electronic marketing campaigns play a significant part in business’s overall marketing strategy for the promotion of their business, goods and services. They provide an effective tool for the delivery of marketing messages via email or text messaging. However, businesses utilising electronic marketing communications that are linked to Australia must ensure their electronic communications comply with the Australian Spam Act 2003 to avoid significant penalties and court action. Adequate systems, processes and procedures are critical to ensure compliance with the Spam Act and to minimise the risk of infringement.
Optus and Woolworths pay Penalties for breaches of Spam Act
Optus paid a $504,000 penalty after Australian Communications and Media Authority (“ACMA”) issued an infringement notice under the Spam Act for alleged breaches of the Act. ACMA alleged that Optus, during the period 1 June 2018 to 4 December 2018, had sent out commercial electronic messages without the express or inferred consent of the relevant account holders and its messages did not have a proper unsubscribe facility. Optus also provided ACMA a three year, a court enforceable undertaking to ensure compliance with the Spam Act[i].
Woolworths Group Limited (“Woolworths”) paid a pecuniary penalty in response to an infringement notice for $1,003,800 issued by ACMA in May 2020 and also provided court enforceable undertakings for alleged breaches of the Spam Act. ACMA alleged that:
As a part of court enforceable undertakings Woolworths agreed to appoint an independent consultant to review and report on the relevant business units’ current procedures, policies, training and systems in respect of compliance with the Spam Act; implement recommendations contained in the report and undertake training of staff and ongoing monitoring of compliance[iii].
Risk Management Strategies for Compliance with the Spam Act.
Businesses involved in electronic marketing campaigns offering, advertising or promoting goods, services, land or interest in land, business or investment opportunities, should have a current strategy and implementation plan for compliance with the Spam Act and management of risks. Some of the factors that business need to consider as a part of their strategy and risk management plan include:
Authored by Katarina Klaric, Principal, Stephens Lawyers & Consultants (31 August 2020)
© Copyright August 2020 — Stephens Lawyers & Consultants
Disclaimer: This update is not intended to replace obtaining legal advice.
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