Are You Spamming Your Clients?!
The Unsolicited Electronic Messages Act will affect those
of you who use electronic means, such as email or SMS texts, to market
to current and potential customers. When this Act comes into force
in September 2007. You will now need to have the consent of the receiver
before sending any "commercial electronic messages" by electronic
means.
What are Commercial Electronic Messages?
"Commercial Electronic Messages" are those messages that
are sent using a telecommunication service to an electronic address
to market goods, services, land or business/investment opportunities.
These include emails, SMS texts and instant messages but standard telephone
service voice calls, voice over internet protocols, and facsimiles
are excluded.
The Act provides a number of exceptions to what may otherwise be commercial
electronic messages These include messages that:
- provides a quote for the goods or services at the request of the
recipient.
- facilitates, completes, or confirms a commercial transaction that
the recipient previously agreed to enter into with sender.
- provides warranty information, product recall information, or safety
or security information about goods or services used or purchased
by the recipient.
- provides notification of factual information about the recipient's
subscription, membership, account, loan, or similar relationship.
- provides information directly related to an employment relationship
or related benefit plan in which the recipient is currently involved.
- delivers goods or services, including product updates or upgrades,
that the recipient is entitled to receive as agreed with the sender.
- provides the recipient with information about goods or services
offered or supplied by a government body (a government department
or a crown entity) or a court.
When is it Okay to Send Commercial Electronic Messages?
Your message will be okay if it:
- is first consented to by the recipient before the message is sent.
- has accurate sender information.
- contains a functional unsubscribe facility.
Consent
There are three basic types of consent express, inferred and deemed. Express consent
requires a positive indication that the recipient wishes to receive
the messages. This means that a "tick the box if you don't want
to receive further information" type of unsubscribe facility will
not be enough.
Where there is no express consent, consent can also be inferred from
circumstances, ie the conduct, business or the relationship you have
with the recipient.
Consent is deemed to have been given if the electronic
address of the recipient is published without a "no spam" type
of statement and your message is relevant to that person's business,
work or duty.
Sender Information
The message will also need to accurately set out the details of the
person who authorised the sending of the message and how that person
can be contacted. The contact details provided in your message must
also be valid for at least 30 days after the message is sent.
Unsubscribe Facility
You must have a clear unsubscribe facility built into the message
you send. This facility must allow the recipient to unsubscribe by
sending a message back to the sender, using the same method used by
the sender to send the original message. Note also the requirement
that unsubscribing should not cost the recipient. Therefore, if your
message is sent in a SMS text, then the recipient should be able to
unsubscribe by sending a SMS text back to the sender at no cost. Again,
the 30 day period applies to all unsubscribe facilities.
When Will You Be In Breach Of The Act?
A person may be found in breach of the Act for :
- sending uninvited commercial electronic messages, or being otherwise
involved in the sending of such messages.
- not including accurate sender information in the messages.
- not including a functional unsubscribe facility.
- using address-harvesting software and harvested-address lists.
There are different levels of remedies and penalties, including a
maximum fine of up to $200,000.
How Do You Comply With The Act?
Before 5 September 2007, marketers will need to consider taking the
following steps:
- Review marketing lists used for electronic messages. Ensure all
those on the list have provided consent (express, inferred or deemed)
to receiving messagesIf you are not sure, ask for consent in your
next message (to be sent before 5 September this year), explaining
the need to do so under the Act.
- Consider current procedures for adding people to lists. Include
on your initial client/customer contact form a provision giving consent
to receiving marketing messages.
- If you have an electronic message template (such as those for creating
html email newsletters), ensure you include authorisation, contact
details and unsubscribe facility on that template.
- Establish rules or protocols as to who may send marketing messages
from your organisation.
- Educate the enthusiastic amateur marketers in your organisation.
Sometimes people want to send their own marketing information for
their own private area and they may not be aware of all aspects of
compliance. Make it clear that they need to check with someone who
knows what they are doing first.
- If your email addresses are published on the business website,
consider including a "no spam" statement that you do not
wish to receive marketing messages.
What Else Should You Look Out For?
Even if your message does not contain marketing content, it may still
be regarded as a commercial electronic message if it provides a link
or otherwise directs the recipient to promotional or marketing messages.
Therefore be extremely wary about including in your messages links
that may contain marketing material.
How Long Have You Got?
The enforcement date is 5 September 2007.
For more information, please contact:
John Ferner
Partner
t: +64 9 979 2153
e: John Ferner
Last updated: June 2007
This article is intended to be brief in nature and should be used
for information only. It should not be relied on as legal advice. |
