Spam Act breach by oneofthebest.com

ACMA, the regulator responsible for enforcing the Spam Act - the legislation which governs the sending of commercial emails in Australia, has imposed a heavy fine on the owners of the domain oneofthebest.com .

oneofthebest.com's owners, J and L Mainwaring Pty Limited (" J and L" ) received fines of $21,600 for breaching two of the three fundamental requirements of the Spam Act following an investigation by ACMA into its email marketing activities.

There are 3 main pillars set out in the Spam Act for sending commercial emails in Australia - broadly, these are - CONSENT, SENDER ID and UNSUBSCRIBE. These rules are the fundamental building blocks for sending emails in Australia and no business or other entity (small or otherwise) should consider any email marketing campaign (however small) without working out exactly how those rules apply to each and every email which it sends.

In the case of oneofthebest, the emails sent were what is known as third party emails. In other words, oneofthebest was sending emails on behalf of other busineses. Usually, this is done when a business has its own list and 'sells' that list to a third party or when it agrees to send emails to the people on the list on behalf of the third party. It is not clear exactly which route J and L were going down but what is clear is that they were sending emails on the authority of another entity.

Sending a third party email means that the sender of the email (in this case J and L) must include on the email adequate information about the business whose products or services are advertised in the email (what the legislation refers to as the authoriser) so that the email recipient can, if it wishes contact that business. This is usually referred to as SENDER ID. As the ACMA's acting chairman said " Businesses must remember that both parties - the sender and the authoriser of the message - are responsible for ensuring the messages are compliant with the Spam Act ".

In addition to the failure to comply with the sender ID obligations, J and L were also found to have breached another fundamental pillar of the Spam Act, CONSENT. In order to send third party emails, a business must have clear consent from each recipient on its list to receive those third party emails. The obligation is on the sender of the email (in this case J and L) to show that consent (specifically to those third party emails) has been obtained. This obligation doesn't just apply to third party emails (it is a fundamental obligation before sending ANY commercial email) but the requirements in the case of consents to third party emails do contain additional levels of complexity.

It is a while since ACMA has published details of any investigations and associated fines so it is interesting to note that the regulator clearly wishes to make it clear that it has its eye on the ball and is ready to respond to public complaints about potentially infringing emails.

If you have concerns about any email marketing campaign, third party or otherwise, Counsel on Demand has significant experience of the Spam Act and its obligations. Call Polly on 0401 816290.