The ACMA cranks up enforcement: do your "factual" customer emails pass the Spam Act test?

Sharon Segal
09 Nov 2023
Time to read: 2.5 minutes

For businesses that think their "factual" or "transactional" electronic messages to customers are exempt from the spam rules, now is a good time to review their customer communications to ensure they are indeed outside scope.

During the last 18 months, the Australian Communications and Media Authority (ACMA) has taken enforcement action against a number of businesses that failed to ensure their electronic customer communications complied with the rules of the Spam Act. These enforcement actions have resulted in significant fines being issued totalling over $10 million in penalties.

Historically the ACMA has focused its enforcement activities on clear breaches of the spam rules, such as where a business has sent electronic marketing messages to individuals without their consent or failed to provide a working unsubscribe facility in its communications. However, the ACMA's most recent enforcement actions have involved messages that the businesses characterised as "factual" or "transactional" in nature and therefore thought were exempt from the consent and unsubscribe requirements of the Spam Act.

These recent matters highlight that it is not enough to simply characterise electronic messages to customers as "factual" or "transactional" to avoid the spam rules.

What sorts of messages are subject to the spam rules?

To comply with the Spam Act, businesses must ensure that their commercial electronic messages are:

  • sent with the consent of the recipient;
  • include accurate sender identification details so the sender can be contacted by a recipient; and
  • include a working unsubscribe facility that removes recipients from mailing lists within 5 business days.

Electronic messages (such as emails and SMSs) will be considered a "commercial electronic message" where if, having regard to:

  • the content of the message;
  • the way in which the message is presented; and
  • the content that can be located using links, telephone numbers or contact information set out in the message,

it would be concluded that the purpose, or one of the purposes, of the message includes being to advertise or promote goods or services or a supplier of goods of services.

The promotional purpose does not need to be the sole or dominant purpose of the message; it just needs to be one of any number of purposes.

For example, in the case of Ticketek, the ACMA considered that Ticketek mischaracterised emails as being non-commercial because they contained event information for ticketholders. Even though the emails were intended to provide factual information to ticketholders, they also included a banner at the bottom which stated “Stay up-to-date with the latest Ticketek events” and then included links to social media accounts where Ticketek's goods and services are advertised and promoted. While the email banner may have seemed fairly innocuous, the ACMA formed the view that the call to visit Ticketek's social media accounts for information about other events meant that another purpose of the email was to advertise and promote Ticketek's goods and services. This made the emails a "commercial electronic message" regulated by the Spam Act.

When are messages of a "factual" nature exempt from the spam rules?

The Spam Act permits the sending of commercial electronic messages – without consent or an unsubscribe facility – where the message satisfies specific conditions which make it a "designated commercial electronic message".

Designated commercial electronic messages include messages that consist of no more than factual information and certain limited additional information (which might be considered promotional) such as:

  • the name, logo and contact details of the business that sent or authorised the sending of the message;
  • the name and contact details of the author; and
  • a working unsubscribe facility.

In the case of Ticketek, the banner calling on ticketholders to “Stay up-to-date with the latest Ticketek events” using Ticketek’s social media accounts meant that Ticketek's emails went beyond these strict conditions and remained commercial electronic messages that required consent of the recipient and a working unsubscribe facility.

Key takeaways for businesses

  • It is not enough to simply characterise an electronic message to customers as "factual" or "transactional" to avoid the spam rules. Even if a message is largely factual, if additional information in the message has an advertising or promotional purpose, the message can only be sent with the consent of the recipient and must include a working unsubscribe facility.
  • If you want to send a "factual" or "transactional" electronic message to a customer without their consent, ensure that the message contains factual information only and does not include links to offerings or a call to visit websites or social media accounts for advertising or promotional material. It is fine for the message to include the author's name and contact details, and the name, logo and contact details of the business.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.