On 20 January 2021, the Australian Communications and Media Authority (ACMA) announced that Kogan had provided a court enforceable undertaking and paid an infringement notice in the amount of $310,800 for breaches of the Australian spam laws.

The Facts

ACMA’s investigation found that Kogan Australia Pty Ltd sent more than 42 million marketing emails to consumers from which they could not easily unsubscribe.

The emails required customers to take additional steps to unsubscribe including setting up a password and logging into a Kogan account.  

ACMA’s investigation found such messages breached the Spam Act, as the Spam Act requires that commercial electronic messages contain a functional unsubscribe button, allowing consumers to easily unsubscribe if they wish.

ACMA’s investigations came after they received a number of complaints and after ACMA sent Kogan multiple compliance alerts, to alert them of potential non-compliance with the Spam Act. Kogan fully cooperated with the investigation.

Outcome

As a result of the ACMA investigation, ACMA accepted a three year court enforceable undertaking from Kogan. The undertakings require Kogan to appoint an independent consultant to review its systems and procedures and to implement any recommendations which might arise from the review. The undertakings also require Kogan to train staff responsible for sending marketing messages and to report back to ACMA on actions taken in relation to consumer complaints.

Key Lessons

This case highlights ACMA’s willingness to take strong action for breaches of the relevant spam laws.

It is a timely reminder for businesses that they need to be aware of the requirements under the Spam Act when sending out marketing emails or messages to ensure compliance.

If you have any questions or concerns relating to  any of the information in this blog or you require assistance, please do not hesitate to get in touch with a lawyer in Coleman Greig’s Commercial Advice team, who would be more than happy to assist you.