The Spam Act will come into force on 10 April 2004, prohibiting the sending of unsolicited commercial electronic messages that have an Australian link. The impact on some Australian business practices could be substantial, according to Duncan Giles, Special Counsel at Freehills, as not only will they risk significant fines (of up to $1.1 million per day) if they send any advertising emails without consent, they will also be prohibited from sending unsolicited advertising by SMS (Short Message Service) and MMS (Multimedia Messaging Service) as well, with the same penalties applying.
‘The Spam Act will ban all SMS and MMS messages sent without prior consent after 9 April 2004 that advertise, offer or promote goods or services, or suppliers of goods and services,’ said Mr Giles. ‘It will require that SMS advertising messages themselves include contact details and an address for unsubscribing.’
Email marketing, and more recently SMS marketing, has rapidly grown to be a very successful and effective marketing tool. Because of the Spam Act, companies that use electronic media for marketing will need to re-assess how they conduct future marketing campaigns which incorporate the use of electronic media to reach their target audience.
‘No electronic marketing communication can be sent without prior consent of the recipient’, said Mr Giles. ‘It is possible to infer consent in many circumstances, and it may therefore not be too hard for most clients to comply, but they should ensure that they have reviewed their own operations fully to make sure that they actually do have consent.
‘In addition, with respect to more innovative communications like SMS and MMS, which may be very limited in size, marketers need to consider how they will effectively implement the requirements to include both unsubscribe facilities and contact details in the body of a small message. The question of who should be charged for sending an unsubscribe message (eg by SMS) will also need to be addressed.’
The Australian Communications Authority has responsibility for the Act and has indicated that its initial approach to enforcement will, to a large extent, be based on complaints (ie if someone is subject to a large number of complaints from the public, for whatever reason, then the ACA is more likely to look into the issue).
Mr Giles commented that ‘although there is clearly some work to be done in ensuring that legitimate SMS or MMS marketing will not breach the Act, if approached in the right way compliance should not be overly onerous, nor should it mean an end to text marketing. A real change in approach may however be required.’