Spam for wine business causes huge spillage

The Spam Act

Under the Spam Act 2003 (Cth) (Spam Act) it is prohibited to send, or cause to be sent, unsolicited electronic messages of commercial nature (that is “spam”) without the following 3 key conditions:

The recipient’s consent;
Accurate information about the person or organisation who authorised the sending of the message and how to contact them; and
A functional ‘unsubscribe’ facility to allow the recipient to opt-out from receiving future messages from that source.

Stating the obvious

For anyone who communicates via electronic messages (almost all of us), it will be no surprise to look at this list below for examples of what are classified as ‘electronic messages’ under the Spam Act:

Email;
Instant messaging;
SMS; and
MMS.

The fine print

However, not every electronic message will breach the Spam Act – it needs to be an electronic message for the purpose of advertising, promoting or offering any product, service, investment, land or business.

An expensive wine bill

The Australian Communications and Media Authority (ACMA) is a key government body responsible for enforcing the provisions of the Spam Act. In a stark warning to those not shy of sending spam, ACMA has been flexing its muscles by responding to spam complaints and imposing harsh penalties. In a recent example, Cellarmaster Wines (the Woolworths-owned direct wine sales business) was reprimanded with an infringement notice for sending spam, promoting Cellarmaster’s website, to customers who previously opted-out of receiving marketing communications. This resulted in an expensive $110,000 bill for the liquor chain.

The penalties

The Spam Act provides for a wide range of enforcement options for breaches including enforceable undertakings, formal warnings, infringement notices, Federal Court injunctions and penalties (such as penalties of up to $1.1 million for repeat offenders).

Pause for thought

You should think twice before sending an unsolicited email message from now on – ACMA may be watching. Make sure your processes are watertight so that recipients who have opted-out are not inadvertently sent marketing emails – most businesses can’t afford the financial ‘spillage’ that Cellarmaster suffered.

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