Australian Spam Act - 2003
The 2003 Australian Spam Act is pretty easy to follow, and to be covered by the Spam Act, the message must be commercial in nature. For example, offering a commercial transaction, or directing the recipient to a location where a commercial transaction can take place.
The Spam Act says that unsolicited commercial electronic messages must not be sent. Full stop! Simple as that 
The legislation covers email originating in Australia and sent to any destination, and also originating overseas and sent to an address accessed in Australia (although prosecution for this might prove difficult until all countries have appropriate legislation).
The three key elements you need to consider when checking compliance are:
- Your commercial messages should only be sent when you have CONSENT. This may be express consent from the person you wish to contact – a direct indication that it is OK to send the message, or messages of that nature.
It is also possible to infer consent based on a business or other relationship with the person, where it is clear that there is a reasonable expectation that messages will be sent.
- Your message contains clear and accurate information IDENTIFYING the person or business responsible for sending the commercial electronic message.
- Ensure that a functional UNSUBSCRIBE facility is included in all your commercial electronic messages, and you deal with unsubscribe requests promptly (within 5 days).
For online marketers, the only “problem” areas seems to be around two main points.
Express consent is “a direct indication that it is okay to send the message, or messages of that nature.” To me, that suggests that once you have sent the “messages” originally requested, you can NOT then send them a different set of messages without gaining their consent again.
For example, you have delivered an online e-course by email. When that sequence is finished, do you NOW have their express consent to add them to your newsletter list so you can keep them updated on other “products interest” or other relevant news from you?
I tend to think the answer is NO. Not unless you specifically said that would happen, and they agreed to it!
Now you might think instead that it is reasonable to infer that your “customer” consented to receiving more messages from you because their purchase makes it a pre-existing relationship.
But according to the Australian Spam Act,
it would not be reasonable to infer that a person consented to receiving commercial electronic messages from you simply because of a transaction along the lines of any one-off purchase. Transactions such as the purchase of a t-shirt or groceries from a shop, attendance at a concert, performance or movie, would not be a good basis for inferring consent, or assuming that there is a pre-existing relationship.
So it seems to be a bit of a hazy area there… Best you check these PDF guidelines for more information on inferred consent and other aspects of the legislation. Full details are available here.
However, of more concern to e-marketers is the Australian eMarketing Code of Practice which establishes comprehensive, industry-wide rules and guidelines for the sending of commercial electronic messages, and provides a framework for industry to handle complaints about spam.
Because the code was registered on 16 March 2006 it means that ACMA (Australian Communications and Media Authority) can enforce compliance with the code rules on all members of the e-marketing industry, as defined by the Telecommunications Act 1997.
So you should make yourself familiar with the Australian eMarketing Code of Practice too, particularly in regard to the IDENTITY requirements mentioned!
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