Businesses that send marketing emails or SMS messages to customers must ensure the messages they send don’t count as spam or else risk facing significant fines, warns a Brisbane specialist in technology law.
According to Michael Morris, head of HopgoodGanim’s Intellectual Property and Technology practice, there is a common misconception that an electronic message only counts as spam if it is sent to millions of people and tries to persuade the recipient to buy products, such as adult novelty items and replica watches.
However, an electronic message can be classed as spam if it is sent without the recipient’s consent, doesn’t identify the sender and include their contact information, or doesn’t allow the recipient to unsubscribe or opt out of further messages.
“The Spam Act 2003 contains harsh penalties for spam, and the Federal Court may impose penalties of up to $1.1 million per day for repeat offenders. The highest penalty to date in Australia is $15.75 million, which was handed down in Brisbane by the Federal Court in late 2009.”
According to Mr Morris, the Australian Communications and Media Authority (ACMA), the body that governs email communications, is casting a wider net in its prosecutions against people and businesses who might not fit the stereotypical image of a spammer.
“In early February, CommSec, the securities trading division of the Commonwealth Bank, was fined $55,000 by ACMA for sending commercial emails that did not allow people to opt out of the email service, and continuing to send emails to people who had already opted out.”
“This comes on the back of a prosecution in January, where a Wollongong-based real estate agent was found to have breached the Spam Act by sending commercial electronic messages without an unsubscribe facility.”
“Seemingly innocuous electronic messages can result in severe punishments, and businesses should be vigilant that their marketing campaigns do not contravene the Spam Act,” he said.
Contact:
Esther Cohen, Communications Advisor
Tel: 07 3024 0192
