There are two things to know about the Spam Act.

• The Act does not ban all unsolicited or bulk emails.
• It makes life difficult for businesses with aggressive online marketing programs.

How should a company, doing business in Australia, approach this law?  Carry on spamming and hoping for the best IS NOT AN OPTION BECAUSE:

• There are fixed penalties of $220 per spam message.
• If you dispute the fixed penalty notice, you risk court proceedings and an increase of penalty (by 10 times in some cases).
• If the court wants to make an example of you, it can order a penalty of $1.1M.  This would be a wholly unrealistic penalty for a small business where the owner runs a tight ship and sales employees are a restrained, considerate and wholly obedient bunch of people.  However, if you suspect some “free spirits” among your sales staff, start preparing your defence now as your business will be liable.

TEN RULES TO AVOID A SPAM PENALTY

• DO have a policy and let your staff know what it is.  This can be as easy as your staff reading this article.  However, the judge would probably prefer more.
• DO NOT send “selling” spam by email, fax or text without having the addressees consent.
• CAN SEND “informative” unsolicited information but do not sell (even a little bit) in the electronic communication.
• DO say clearly who you are.
• DON’T carelessly use mailing data.
• DO NOT use a harvested address list which is created by software collecting emails from the Internet.
• DO apologise quickly to prevent being reported.  One telephone call can save you $220.
• CAN SEND spam to publicised email addresses where the person is in business and clearly does not mind receiving such emails.
• DO have an unsubscribe facility in the email.
• DO deal with unsubscribe requests within five days.

Defences to a spam accusation

If your abject apology has not worked, paying the fixed penalty may be the easier and cheapest way.  However, before putting your hands up, consider the following questions:

1. Did you have implied consent?

You must have the addressees consent, however under the Act this can be express or implied; this means that if you had a pre existing relationship with the addressee, it is reasonable to expect that they would consent to being told about your new products.  At the extreme end, businesses that have used mailing lists in the past and contacted people may be able to claim implied consent to qualify that address list.  For new businesses, it may be a matter of getting consent, individual by individual.

2. Was the spam message selling anything?

The Act targets spam messages, which try to sell something.

Useful information such as maps or explanations of a new law for instance will not fall under the Act.

The Internet, as a marketing tool, cannot be ignored by any modern business. However, you must be careful and, where bulk email is concerned, be responsible.

This is a only guide and if after reading this, you feel you are sailing close to the wind, speak to your lawyer.

© Paul Brennan 2005. All rights reserved.

Paul Brennan's practice includes on-line law and he is the author of  Easy IP - How to use the law to protect your money-making ideas. A book and DVD.

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