A guide to complying with ‘Unsubscribe’ under the Australian Spam Act

In the digital age, email and SMS communication has become integral to businesses’ marketing strategies. To maintain a balance between effective outreach and respecting individual privacy, the Spam Act plays a crucial role in regulating electronic communications, mainly through its provisions on the “unsubscribe” mechanism.

Understanding the Spam Act

The Australian Spam Act is a federal law designed to reduce the prevalence of unsolicited commercial electronic messages. It covers emails, SMS, MMS and instant messaging, with the primary goal of protecting consumers from unwanted and intrusive communications. One of the critical requirements of the Spam Act is the inclusion of a functional “unsubscribe” mechanism in every commercial electronic message.

The unsubscribe mechanism must provide recipients with a straightforward way to opting out of further electronic communications. Generally, the unsubscribe mechanism must be:

1. Clear and conspicuous: The option to unsubscribe should be easily identifiable and not buried within the text. It should stand out to ensure that recipients can quickly locate and utilise it. A recommendation is to have the unsubscribe function at the bottom of each electronic message that is either highlighted or in bold fonts.
2. Free of charge: Unsubscribing shouldn’t incur any cost to the recipient other than the usual amount for using the address such as a standard text charge for unsubscribing to an SMS.
3. Efficient: The unsubscribed function should not require the recipient to give extra personal information, log in, or create an account to unsubscribe.
4. Valid for at least 30 days: The unsubscribe request link must remain valid for at least 30 days.
5. Actioned within five business days: If an unsubscribe request is made, then it must be actioned within  five  business days from when the request was sent.

It is essential to ensure that no further electronic messages are sent to unsubscribed recipients.

Consequences of non-compliance

Failure to adhere to the Spam Act’s requirements can result in severe consequences for businesses. The Australian Communications and Media Authority (ACMA) is empowered to investigate and take enforcement action against those who breach the legislation. Penalties can include substantial fines, and individuals involved in the breach may face personal liability.

To ensure compliance with the Spam Act, businesses and marketers should adopt the following best practices:

1. Regularly update mailing lists: Keep mailing lists current by promptly processing unsubscribe requests to avoid inadvertent non-compliance.
2. Educate staff: Ensure that staff involved in electronic marketing are well-versed in the requirements of the Spam Act and the proper implementation of the unsubscribe mechanism.
3. Monitor compliance: Regularly review and audit email marketing practices to identify and rectify potential compliance issues.

The enforcement of the spam unsubscribe rules is one of ACMA’s compliance priorities. In the last 18-months, there have been more than $12.5 million in spam and telemarketing penalties. Some notable cases include:

• Kmart received a $1,303,500 infringement notice for sending 212,471 messages to customers who had previously unsubscribed between July 2022 and May 2023.
• Ticketek received a $515,040 infringement notice for sending:
  • around 41,000 texts and emails without the recipients’ consent; and
  • around 57,000 texts and emails to people who had previously unsubscribed.

• Mycar Tyre & Auto received a $1,047,000 penalty after:
  • sending more than 1.45 million texts and emails without a functioning unsubscribe mechanism between January 2022 and August 2022;
  • requiring over 276,000 recipients to provide vehicle registration details to opt out; and
  • sending almost 5,000 messages to recipients who had previously opted out.

• DoorDash received a $2,011,320 infringement notice for sending more than:
  • 566,000 promotional emails to unsubscribed customers; and
  • 515,000 texts without an unsubscribed mechanism.

Conclusion

The “unsubscribe” mechanism is a cornerstone of compliance with the Australian Spam Act, safeguarding against the proliferation of unsolicited electronic communications. Businesses and marketers must prioritise the inclusion of a clear and functional unsubscribe option in their messages, demonstrating respect for recipient preferences and upholding the standards set by the legislation. By doing so, businesses can avoid legal repercussions and foster trust and positive relationships with the recipient.

For more information on your business’ obligations under the Australian Spam Act, please contact Coleman Greig’s Commercial Advice team.