Everyday there are emails to me from companies locally and abroad pitching their services and I often wonder how the Australian companies in particular decide that they are not contravening the Australian spam laws.

Overseas companies can do pretty much whatever they like. There are no substantial ways for the Australian regulators to stop them from spamming Australian businesses because they are outside the jurisdiction of our laws.

That poses an interesting conundrum because as business owners in Australia we might like to be able to send at least introductory emails to potential customers and let them know that we exist but if we do then we could end buried under a hefty fine.

The short answer is, don’t buy bulk mailing lists and send emails to unsuspecting business owners offering your products and services.

Or as one mailing list selling company put it:

A lot is going to depend on what you are going to send but if you have doubts about how to comply then you should not run an email campaign.

Definite requirements of the spam laws

Nobody likes thoughtless pointless spam. In fact, according to the Australian Spam Act of 2003, it is illegal in Australia to send unsolicited emails. There are three requirements you must adhere to:

  1. Recipients of your message must give consent to receive emails from you;
  2. You must provide identification of your business contact details; and
  3. You must provide a working unsubscribe link.

Emailing marketing platforms like mailchimp and infusionsoft force you to do items 2 and 3, and they provide strong encouragement to comply with option 1. If you are using a service like mailchimp and you get a lot of unsubscribes and spam notices then they will/can close your account.

If you are thinking that this seems a bit unclear as to what is allowed and what constitutes as permission then you are right, it is somewhat open to interpretation. The reply I got from one list dealer confirmed even they are not entirely sure:

The spam laws are not totally clear when it comes to B2B marketing and that is why we stick with what we know and do best – researching and supplying business data rather than to try and offer email delivery services or even advice on the subject especially as we sell data to over 20 countries most of whom have different laws or interpretations and implementations of those laws..

Let’s look at each of these three areas in detail and how they affect you.

Consent from the business owner

When building your subscription list, make sure that your subscribers know what they are getting themselves into. By respecting the privacy of your clients (or potential clients) you can develop and maintain a trusting relationship.

Regarding adding email addresses from your existing contact list, the Spam Act makes a distinction between:

  • People with whom you have an existing business relationship, and
  • People who are merely contacts.

In the first instance consent can be taken as inferred, but in the second instance it would appear that an explicit consent process is neccesary. Consult the Spam Act to clarify this for yourself.

In the process of collecting email addresses, make it clear if they will be added to your subscription list to receive emails. It is not sufficient to have a pre-filled checkbox indicating a request for subscription. If you provide useful information the client will want to receive your emails, instead of feeling they were tricked into subscribing.

It is also important to provide a double opt-in registration process. This is a double-check that the owner of the email address is actually giving consent to be subscribed. A confirmation email is sent to the requested email address and the recipient must click on a link to confirm their intent to subscribe. This prevents a subscription by someone who does not own the email address.

This is essentially what one list seller reiterated, don’t send email unless you have approval to do so:

Unfortunately due to the SPAM ACT there is very limited B2B email data available. Regardless, where email data is available you need to gain the individual opt-in consent of each prospect via telemarketing prior to sending them an email. You can read more on the SPAM Act here.

Our recommendations are to Telemarket the prospects and gain the opt-in consent and email address this way. This solution ensures you are complying with the act and also have the chance to pitch your product/service so the prospect is expecting the email when it arrives in their inbox (less chance of instantly deleting).

Identification

When sending a letter via ‘snail mail’ you wouldn’t think of omitting your own contact details, so the same should apply for sending out an electronic message.

According to the Spam Act 2003 you need to provide:

  • Your legal business name;
  • Your ABN, where applicable; and
  • Your contact details, such as your physical or website address, telephone number and email.

The easiest way to remember to include this is to embed it in the template you use for sending campaigns. Most mailing list providers will have this as a default inclusion since California has much the same requirements.

Unsubscribe facility

Probably the most important aspect of being compliant is providing a facility that allows recipients to unsubscribe. It is required by law that this facility is easily visibleeasy to use and requests are actioned within five working days. An automatic process is always easiest.

Most mailing list providers have this as a default inclusion on any campaign you send.

Further information

The above information is intended as a guide only. For complete and up to date information, you should consult the Australian Communications and Media Authority website, which provides detailed guidance for interpreting the Spam Act of 2003.

That takes care of legal requirements. A quality email marketing system can also help in other ways to maximise the success of your campaign, such as searching the content of your email for words likely to be picked up by spam filters.

If you are still intent on sending bulk email

  1. Be prepared for some complaints and to act on them quickly so that they don’t escalate to the official ACMA spam complaint process.
  2. Ensure your staff know what emails are going out and don’t let them bulk email without permission.
  3. DO NOT send “selling” spam by email, fax or text without having the addressees consent, i.e. they are existing clients or they filled in a form that said they are ok to be contacted.
  4. Put all your contact details on the email, do not be evasive about your identity.
  5. Target recipients properly so that the offer is relevant to them. People are much more likely to complain if the email they get is completely random and out of context to their work.
  6. Only use email mailing lists that have come from a reasonably good source, i.e. randomly scraped email addresses from websites is probably not a good starting point.
  7. Apologise quickly to prevent being reported and fined.
  8. You should be able to send email to publicised email addresses where the person is in business and clearly does not mind receiving emails from other companies.
  9. Have an unsubscribe facility in the email which allows the person to automatically remove themselves from your list.

Is the message commercial in nature

There is a evidently a grey area that keeps appearing when I read through the various spam law documents and peoples explanations of them which is what about an email that doesn’t have a commercial intent.

The spam laws say that to be covered by the jurisdiction of the spam laws a message needs to have commercial intent, which could include:

  • an offer to buy or complete a transaction (e.g. buy my stuff <link>)
  • links to a commercial or business website (e.g. we sell stuff <link>)
  • an implied transactional purpose (e.g. would you be interested in stuff <link>)

So where does that leave an email that is a request for a survey or an interview there there is no commercial intent and no offer to buy anything or product promotion?

How to get inferred consent

Inferred consent is another interesting and perhaps grey area of the spam laws because as a business owner are you giving inferred consent to receive emails if your contact details are published on a website which shows you as the point of contact for a business, product or service.

The website that the recipient email is published on might not necessarily be one that was created by the recipient either. If the recipient has been discussing in a forum or a message group on social media that they work in a certain industry and their email address is attached to that messaging then perhaps that implies some inferred consent too.

It’s hard to give a general rule about this but there does seem to be room within the spam laws to make this a reasonable possibility.

Here is an extract from the spam laws summary document: source pdf link.

Examples of inferred consent may be:

  • when an addressee has conspicuously published their electronic address. In such a case the Spam Act permits commercial electronic messages to be sent to the addressee, if the message relates to the addressee’s published employment function or role.If a plumber advertises their email address, it is okay to send them offers of work or of plumbing supplies, but not to send an offer unrelated to their work, such as cheap pharmaceuticals. If the published address is accompanied by a statement saying that it should not be used for such messages, such as the words “no spam”, then it cannot be used to infer consent to a message being sent;
  • Similarly, when an addressee has provided a business card containing their electronic address, it would be a reasonable expectation on both sides that relevant messages would be sent to that electronic address. For example, if the business card was provided for work purposes then it would not be reasonable to infer that the addressee consented to receiving messages from you which are unrelated to their work.

Conspicuous Publications

Ref: acma.gov.au/theACMA/spam-inferred-consent-and-conspicuous-publications

Inferred consent and conspicuous publications

 Under the Spam Act, you can only infer consent through conspicuous publication if:
  • the electronic address is published ‘conspicuously’—that is, it is accessible to the public, or a section of the public (for example, it appears on a website or in a telephone directory or brochure)
  • the address is not accompanied by a statement that commercial messages are not wanted
  • the subject matter of your message is directly related to the principal role or function of the recipient (electronic account-holder).

You might be able to determine the person’s role from the context in which their address is published, from the address itself (for example, accounts@business.com) or from accompanying information (for example, ‘To contact our accounts department, email: numbers@business.com’). If you are not certain that your message relates directly to the role of the intended recipient, and you send it anyway, you may breach the Spam Act.

With conspicuous publication, there must be a strong link between what you are promoting and the recipient’s role or line of business. You cannot infer someone’s consent just because you believe your product would benefit them.

Examples:

  • If you sell IT software to businesses, this does not mean you can send promotional emails to any business with a published email address. However, if a business conspicuously publishes the email address of their IT department, you may be able to infer that account holder’s consent, as your message is directly related to their role, function and line of business: IT.
  • If your business sells washers for taps, you cannot send commercial emails to all businesses with conspicuously published email addresses on the assumption that they all need washers in their taps. However, you could send your promotional emails to plumbing supplies stores.

All commercial messages sent with inferred consent must also meet the identify and unsubscribe conditions of the Spam Act.
For more information visit the Consent page.

Scenarios that could feasibly comply with the spam laws

  1. Go to a business function and collect email addresses of all the people who are attending from business cards or brochures; or visit the businesses website and make note of the persons name, email and role and what the company they are working for does and work out how your business/product/service would be relevant to them; or physically visit their store and collect something with their email address on it.
  2. Segment those contacts according to the type of business they are in.
  3. Craft an email to each segment which introduces you to the contact but does not make any kind of sales pitch or offer to buy or link to a sales page. You might send them a link to free advice relevant to their industry or a survey or some other information that establishes in their mind that you are a useful person to know.
  4. Refer in the email to how you got their email address and why you believe what you are emailing them about is relevant to their business and work role.
  5. Ensure the email you send has all your contact details and a working unsubscribe link.
  6. Send the email carefully to the people within your segments.
  7. Quickly a promptly deal with any complaints and apologise immediately to anyone that gets annoyed.

Testing is required

This scenario and the information above is all based on research and reading of the relevant documents and what other people have published. Ultimately it needs to be tested with real world email marketing to see what works well, whether there is any sort of positive response. All this conjecture about what is spam and what is not will be for naught if there is not beneficial outcome to the email that is sent.

Be careful when buying a list, or don’t buy one

The legislation doesn’t look kindly on bought or harvested lists but it doesn’t prevent you from creating your own lists. Here is an extract from the spam laws document:

The legislation bans the use of address-harvesting software and harvested-address lists, for the purpose of sending spam. You should ensure that the use of such software and lists are for purposes other than for sending unsolicited commercial electronic messages.

Lists generated manually (for example by reviewing websites) are not prohibited. However, if addressees have included a statement adjacent to their electronic address indicating the addressee does not wish to receive commercial messages, this must be respected.

And it further reiterates this in regards to purchasing lists:

You may use a purchased or rented list of contacts, but you should be careful to ensure that the requirements of the Spam Act have been met (i.e. consent has been obtained).

It’s a big topic to understand but there does seem to be scope to be able to send something to people who are in business who publish their contact details so long as you do it in a quite gentle and unobtrusive and relevant way.


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