Are you illegally spamming your customers?

Virgin Australia’s (formerly Virgin Blue) recent fine for spamming their customers by failing to implement a functional ‘unsubscribe’ facility serves as a warning to businesses who engage in online marketing and media communication to ensure they comply with the Spam Act 2003 (Cth) (The Spam Act).

The Spam Act prohibits the sending of ‘unsolicited commercial electronic messages’, and covers emails, mobile phone text messages (SMS), multimedia messaging (MMS) and instant messaging (iM) among other electronic messages.

The Australian Communications and Media Authority (ACMA) is responsible for enforcing the Spam Act 2003 (Cth), and issued the $110,000 fine to Virgin Australia after it was found to have breached the requirement that a person must not send electronic marketing messages without the consent of the recipient.

A recipient is deemed to have withdrawn their consent to receive messages after a period of five days once they send an unsubscribe message to the sender. Virgin Australia continued to send marketing emails to customers after receiving multiple unsubscribe requests.

Other businesses have been found to engage in similar activities in breach of the Spam Act, with Apus (an online retailer) being issued a formal warning by ACMA for continuing to send emails to customers after those customers had withdrawn their consent by unsubscribing from the Apus mailing list.

According to ACMA, there are a large number of spam complaints in relation to the unsubscribe processes for electronic marketing. Businesses who engage in marketing through commercial electronic messages should consider the following:

  • Do your marketing messages provide clear directions to customers on how to stop receiving your messages?
  • Does your business have effective processes in place to ensure that you remove customers’ addresses from your mailing lists within five working days of their request?
  • Do you regularly test that the unsubscribe function in your messages is working properly?

If you require any assistance or further advice on complying with the Spam Act, please contact Certus Legal Group.

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