In Australia, you can only send a marketing email or SMS to someone who has consented to receive it, either expressly (they opted in) or by inference from your existing relationship. Every message must clearly identify your business, include your contact details, and have a working unsubscribe option that you action within 5 working days. These rules come from the Spam Act 2003 (Cth), and the regulator takes them seriously.
Sending your contacts special offers, opportunities and other marketing information can be a wonderful way to grow your business. But Australia has strict laws around mailing lists and other ways of reaching out to your customers and clients. These laws are in the Spam Act 2003 (Cth) (Spam Act), and they're enforced by the Australian Communications and Media Authority (ACMA). I'm sharing below what you need to know, and how the rules apply to your business.
1. What is a commercial electronic message?
Under the Spam Act, a commercial electronic message is an email, SMS, MMS or instant message that offers, advertises or promotes goods, services or investment opportunities.
Any time you send a promotional email or SMS through your business, you need to follow the Spam Act. That includes messages that are mostly informational but also include a promotion, like a newsletter with a special offer at the bottom.
2. When can I send a marketing email or SMS?
Before you send a marketing message to anyone, you need their consent. The Spam Act is an opt-in system: people choose whether they want to receive emails and other marketing messages from businesses.
3. What counts as consent?
There are two types of consent.
Express consent is where a person knowingly agrees to receive marketing messages from you. People can give express consent by:
filling in a form, for example a "sign up to our mailing list" pop-up on your website
ticking a box at checkout or sign-up, where your website terms and conditions or click-to-accept terms are drafted so the customer agrees to receive marketing messages
giving it over the phone
giving it face to face.
You can't email or SMS someone to ask for their consent, because that message is itself a marketing message. You also need to be able to prove that someone gave you express consent, so keep records of when and how they opted in.
Inferred consent is where someone hasn't directly given consent, but you can reasonably infer it from your existing business relationship and their conduct. For example, you email a current customer about the service they've bought from you. Inferred consent has limits, so don't rely on it for a broad marketing list.
4. What every message needs
Every marketing email or SMS you send must include:
Who it's from: your business name or ABN, clearly identified
How to contact you: accurate contact details
A way to unsubscribe: a free, clear and easy unsubscribe option. It must work for at least 30 days after you send the message, and you must action unsubscribe requests within 5 working days. You can't make people log in or give extra personal information to unsubscribe.
5. The importance of airtight business legals
If you want to obtain consent, make sure your business legals deal with it properly.
Your website terms and conditions and any click-to-accept terms need to be drafted so that a client/consumer is clearly giving consent to receive marketing messages. That's one of the many reasons why copying another business' website terms and conditions doesn't serve you (you can hear more about this in the Rise Up in Business podcast episode on Don't copy other website Ts & Cs, here's why). Your terms need to be airtight, to the point, and consistent with the Spam Act. For more on the documents your website needs, read website documents: what small businesses need. And because your mailing list is personal information, your privacy policy should explain how you use it.
ACMA actively investigates spam complaints, and businesses of all sizes have paid significant penalties for sending messages without consent or without a working unsubscribe. Once you have consent and follow the other rules, there's no reason you can't communicate with your customers and clients by email and SMS.
Still have questions? If you'd like your sign-up forms, checkout terms or privacy policy reviewed, book an introduction call.
This article provides general information only and does not constitute legal advice. Your obligations depend on your specific circumstances.
Frequently asked questions
Do I need consent to send marketing emails in Australia?
Yes. Under the Spam Act, you need the recipient's express or inferred consent before you send a marketing email, SMS or instant message, and you need to be able to prove it.
How quickly do I have to process an unsubscribe request?
Within 5 working days. Your unsubscribe option must also keep working for at least 30 days after you send the message, and it must be free and easy to use.
Can I email someone to ask if they want to join my mailing list?
No. An email asking for consent to send marketing messages is itself treated as a marketing message, so you need consent before you send it. Ask for consent through a sign-up form, at checkout, in person or over the phone instead.
