The Australian Spam Act in Profile (Part 1)
by Gordon Cramer
The view among all professional marketers is unanimous. Spam is a worldwide problem that has to be taken on with a worldwide effort.
The US started the ball rolling in December last year with CAN-SPAM, followed closely by the implementation of EU Directives. This article, presented in two parts, looks at the Australian Spam Act, which came into force in April of this year. I'll look at how the Act is structured and how it's already making significant progress in the ongoing battle against spam.
Fundamentally Different
If I were to point to one major and fundamental difference between this act and others from around the world, it would be that the Australian Spam Act is "opt-in" and consent-based. Recipients cannot be sent commercial content via email, SMS, IM or other electronic communications without their prior express or inferred consent.
What the Act doesn't cover is fax transmissions or voice-to-voice telemarketing—that's the job of other legislation.
In short, the Act allows two forms of consent: express and inferred. It applies to two types of messages: commercial and factual.
In this first article, I'll review the two forms of consent and their effect on how marketers carry out their work. I will also look at best practices associated with the requirements of the Act.
In part two, I'll cover the two types of message that can be sent (and those that can't), plus implications for international, cross-border marketing campaigns. I'll also discuss an interesting call to action.
At the heart of the Act is this message: It is illegal to send "unsolicited commercial electronic messages with an Australian link."
In other words:
· Messages for which no consent had been given
· The content of which is commercial in nature
· And which is transmitted electronically
· With an Australian link
The last point means that the Act applies to messages originating from within Australia but being sent to any location, as well as being sent from any location to a place within Australia.
Express Consent
The Act says that there are two kinds of legal consent: express or inferred.
Express consent is given when, for example, people visit your Web site and register for your email newsletter or product update. They could do that via a subscription box that requires them to fill in their email address. If that has been done, then it's fine to send them commercial emails, because they have given you express consent.
You can also gain express consent when someone:
· Fills in a hard copy form from a newspaper or magazine requesting commercial electronic messages be sent to them
· Completes a registration form for accommodation and requests the receipt of future commercial electronic messages
· Fills in a form when visiting a winery or other tourism-based operation and requests to be added to that operation's email list
· Someone hands over his or her business card and asks you to send commercial information, as long as this information is specific to the request (a business card by itself is not sufficient to say that you have consent to send commercial information.)
· Someone telephones or faxes you, requesting to be added to your mailing lists
· Someone verbally requests to receive mail, providing you note the details: time, date and type of information requested
Important: permission is not for just any kind of information; it is for the information requested and no more. So if someone asks you for information on real estate, you are not entitled to send information on vitamin pills.
Best practice for express consent: The issue with a simple Web site subscription is that almost anyone could log onto the site and enter someone else's email address. This could lead to problems and complaints when that other person starts to receive commercial information from you.
Worst still, someone could maliciously enter many names into your subscription box, and you could be faced with an enormous task of cleaning up and making apologies. This can be extremely damaging to your business.
You can overcome the problem with an auto-responder email that is sent out when a person subscribes. The confirmed opt-in is a recognized best practice worldwide and a guideline under the draft Australian eMarketing Code of Practice.
The response email thanks subscribers for their subscriptions. By using such a system, you will find out very quickly how many of the email addresses subscribed were real; if they were not, they will bounce. If the email address was entered by someone else, then the addressee has the opportunity to unsubscribe from within the automatic response email.
The next method commonly used as a best practice is the double opt-in. This system uses the same auto-response email, except that it has a link to a special Web page to which the recipient is asked to go in order to confirm the subscription/email address.
This method results in a very solid list of subscribers. But it has to be said that when this method is used, you will probably not secure as many subscriptions: some figures cite reductions in subscriptions as high as 40%.
Inferred Consent
Inferred consent is a bit different. It effectively allows us to go out and prospect for new business and subscribers to our mailing lists.
You can infer consent in the following ways:
· Someone has conspicuously published his or her work-related email address on a Web site or in a business directory or magazine. The exception is when there is a note alongside the email address specifically stating "No unsolicited commercial messages" or similar wording. However, the message you are sending must relate directly to the nature of the recipient's business.
· You have an ongoing business relationship with an existing customer (a single purchase is not sufficient), and the conduct of the individual or business indicates that consent has been given.
Again, the meaning is clear: you can infer consent and send a commercial electronic message if someone falls into one of these categories.
These might be some examples:
· Someone fills in a form when visiting a winery or other tourism-based operation and requests to be added to an email list.
· Someone hands over a business card and asks you to send commercial information. (Again, the business card by itself is not sufficient to say that you have consent to send commercial information.)
· Someone telephones or faxes you requesting to be added to your lists.
· Someone verbally requests to be added (again, record date and time details).
As always, the permission granted is not for just any kind of information; it is for the information requested and no more.
If you make it clear on the sign-up page of your Web site that the subscriber will also be opted-in to receive commercial emails from third parties (or if you give them that option and they select it), then that's okay. This applies to both express and inferred consent.
What you cannot do is to make an assumption such as "I am an accountant; every business needs an accountant; therefore, I can infer consent from every business."
Nice try, but it is not allowable under the Act. The message must be related to the work of the intended recipient. In the case of the accountant, he could infer consent if the published address was that of a financial controller or someone who organizes contract accounting services.
Something else you cannot necessarily do is this: "You gave me your business card, therefore I can infer consent and send you commercial information." In general, this isn't allowed: someone could infer consent to send the card-giver information on just about anything. A card is not considered to be a conspicuous publication as a Web site or magazine. It is at the personal level and is not broadcast to everyone simultaneously.
However, in certain situations, such as networking meetings, which are set up to build business contacts and relationships, the exchange of business cards could constitute inferred consent; but the important thing to remember is that in this case the messages must pass the "reasonable expectation" test—the recipient must have a "reasonable expectation" of receiving such messages.
Again, no sending messages about vitamin pills when the networking meeting was related to real estate! (See the Goldfish Bowl example cited later in this article for another common example of what is acceptable for gaining consent at certain types of business meetings.)
Important to remember is that inferred consent only allows you to send commercial electronic messages that are related to the work of the person to whom you are sending the message, unless they tell you otherwise.
Best practice for inferred consent: In the case of express consent, the automatic confirmation or double opt-in is best practice. For Inferred consent, I suggest the following:
In the first email that you send to your prospect under the inferred consent rule, include something like the following statement:
I have obtained your email contact address from your Web site/magazine/directory and notice that you have the responsibility for purchasing computer equipment for your company. We are in that business and would like to keep you informed about our range and the promotional offers that we currently have. I have inferred your consent to send this email in the belief that you would be interested in our products. If this is not the case then please select the unsubscribe link at the bottom of this email.
Alternatively, at the head of the email, before the message starts, place something like this:
This email is being sent to you as a result of our finding your email contact details published in a trade magazine/directory/Web site, etc. Should you not wish to receive any further information from our company, please select the unsubscribe link at the bottom of this email.
If your business seeks permission to send commercial messages from third parties, it is a good practice to provide subscribers with a check box, but not pre-checked.
The Goldfish Bowl
Commonly used to attract members to lists, goldfish bowls (set out at trade shows or other gathering to amass business cards) have become part of business practice. They are still okay under the Act, provided that it is made clear with a written notice that everyone who leaves a business card or address details in the bowl is giving consent to be sent commercial electronic messages. There is also a need to display a privacy policy covering how the email addresses will be used, but that is covered by Privacy legislation.
The bottom line is that because of the use and insistence on opt-in, the Act has a strong deterrent effect on spammers. It is not legal here to send emails on the basis that you will receive them unless you tell the recipient otherwise: you must have consent, and you must be able to substantiate that consent.
All well and good for Aussie marketers, but what of the impact on their US and EU counterparts?
In the next article, we look at international implications for all marketers as well as the two message types and penalties under the Australian Spam Act.
The Australian Spam Act in Profile (Part 2)
by Gordon Cramer
In the first part of this two-part article, we took a look at the heart of the Australian Spam Act and how it differs from other legislation. I spent some time on the types of consent as well as the best practices associated with the consent, identification and unsubscribe requirements of the Act.
In this second part, I conclude with a description of message types,
together with some examples, as well as a brief discussion on penalties and
international implications. No article is complete without a call to action,
and this piece is no exception.
Commercial and Factual Electronic Messages
Under the Act, there are two types of electronic message: commercial
and factual. Bear in mind that the law applies to emails, SMS, IM and MMS, as
well as other forms of electronic messaging, but not to faxes, telemarketing or
Internet pop-ups.
Commercial Electronic Messages
A commercial message is one that contains an offer to take part in a
commercial transaction or provides you with a link to a place where a
transaction is offered. This means that if you have any kind of commercial
content within an electronic message, then you must comply with the Act.
Commercial messages would include the following:
New product release information
Details of promotions or special offers
E-newsletters
Details on real-estate offerings
Invitations to special events, and so on…
In fact, any time someone includes information that you and I would
both interpret as being commercial. Links to Web sites that contain commercial
content would generally be enough to render a message commercial.
Factual Messages
These messages contain absolutely no commercial content whatsoever.
They do not contain an offer, and they do not provide you with a commercial
link. Examples:
An accountant sending out a tax office ruling
A lawyer sending information on some aspect of law that
has recently been introduced or changed
A volunteer organization or Neighborhood
Watch sending factual information to people in their area (these can be sponsored
by the local newsagent)
A fishing club sending details of
tides or what bait to use, etc.
All the above can include the following:
Comment directly related to the factual information
Name, Web and contact details of the person or individual
who authorized the message
The name and contact details of the author
The name, logo and contact details of the author's
employer (if applicable)
If the author is a partner of a partnership—the name,
logo and contact details of the partnership
If the author is a director or officer of an
organization—the name, logo and contact details of the partnership
If the message is sponsored—the name, logo and contact
details of the sponsor
Their address details and Web site address—but not
commercial offers
All factual electronic messages must include information about the
individual or organization that authorized the sending of the message.
Identity
Every commercial electronic message or factual message must contain
accurate details of the individual or organization that authorized the sending
of the message. This means that you cannot use a false email address or
business name. You should use your own or business email address.
The information about the individual or organization that authorized
the sending of the message must be reasonably likely to remain accurate for a
period of 30 days. The identification is of the person who sends the message—and
this does not mean the service provider. You will often see that an email has
come from a list server. Emails with only that sort of detail in the
"from" line could breach the Act and will probably get filtered as
Spam in any case.
Unsubscribe
Every commercial electronic message must contain a working
unsubscribe link or method that allows users to easily remove themselves from
your lists. This can be an automated one-click link, an email form link or a
message at the foot of the email telling the recipient that if they wished to
unsubscribe they should reply with the word "unsubscribe" in the
subject line.
When you receive a request/demand to remove someone from your lists,
you MUST do so within five working days of receipt of the request/demand. In many
businesses without any form of automation, this means religiously checking for unsubscribes on a daily basis. Under the Act, even if
someone has previously given their consent, they can withdraw it at any time by
email, post, phone or in person.
Unsubscribe Best Practice
On receipt of an unsubscribe request, you should as a matter of best
practice respond to the person making the request with an acknowledgement of
their requirement. You can also use the opportunity to ask the person within
the email why they are leaving your list. The Act gives you five days to remove
their details, and the market information gleaned would be of good value.
It is critically important to make sure that you keep good records
of all of your subscriptions and unsubscribes.
Penalties
The Australian Spam Act has a number of levels of penalty, and the
Australian Communications Authority (ACA) takes a staged approached to
enforcement:
1.
When a legitimate business
appears to be breaching the Act, the ACA will generally send an advisory letter
informing that a complaint has been made and requesting a reply.
2.
A formal warning again pointing
out a complaint and reasons; you must respond to that letter.
3.
Infringement notice with a
fine.
4.
An individual can be fined up
to $22,000 a day.
5.
A business can be fined up to
$44,000 a day, with a maximum of $1.1 million a day for repeat offenders.
6.
Spammers can be made to forfeit
any profits they may have made from their spam activity.
7.
Victims of spam can be awarded
damages by the courts.
Harvesting Software
Under The Australian Spam Act, it is prohibited to buy, acquire or
use email-harvesting software for the purpose of sending spam.
You must not use harvested email addresses to send commercial
electronic messages.
Address Details
The Act does not require that you include full details of your
physical address within each commercial electronic message. It does require
that you include a method whereby you can be contacted. (The physical address
is, however, a requirement within the draft Australian "eMarketing Code of Practice.")
Subject Lines
There is no reference within the Act to the nature of subject lines.
Content
There is no reference within the Act regarding the nature of the
content of the commercial electronic message.
Default Requirement
The Act does not specify the keeping of records. What it requires is
the substantiation of the fact that you have consent and that you comply with
every aspect of the law.
Keeping records is crucial, and the risks of relying on spreadsheets
that sometimes get overlooked are too great. This will mean a burden for many
companies, but it is part of the price we have to pay.
The Results So Far
Between April 10 and
According to Spamhaus, the number of major
spammers from
International Implications
The challenge for all marketers who send emails across borders is to
make themselves aware of the different legislative requirements. There are
already a number of examples of cross-border cooperation leading to
prosecutions in the
Ever-closer cooperation between legislators from around the World,
supported by organizations such as the OECD and ITU (United Nations), will
inevitably lead to a common set of rules and legislative aims.
From a marketer's perspective here in
From the
Summary and Conclusion
The bottom line is that under The Australian Spam Act:
· You must have one of the two forms of consent: express or inferred.
· You must clearly identify the person or organization that authorized the sending of the message.
· You must include a functional unsubscribe facility.
· You must adhere to the message-type rules.
· You must not acquire, use or borrow email-harvesting software.
· You must not use harvested email addresses.
· You must be able to substantiate receipt of consent.
That really is all there is to it. The Act is relatively easy to
comply with, although there is a requirement for a greater focus on
recordkeeping. It maybe a little early to assume outright success against
spammers at this stage, but the signs are very
encouraging.
Imagine how much could be achieved if there were an international
group of e-marketers who could work on the issues for cross-border campaigns as
well as a global e-marketing code of practice.
Any takers?
Note: Information in this article
is correct at the time of going to print, but there may be subsequent changes
to legislation and regulations that may occur. Regularly check for any changes
with the Australian Communications Authority, www.spam.aca.gov.au.
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