Responsible email marketing - how to comply with the Australian spam laws


What is the definition of spam?

Spam refers to unsolicited commercial electronic messages. This includes messages sent via email, instant messaging and SMS.

Why do businesses spam?

In principal email marketing is a great idea, you can reach thousands of potential customers with incredibly small distribution costs compared with more traditional marketing techniques such as fliers or brochures delivered by post.

Many businesses that send spam (like our hair dressing friends) are simply unaware of the problems caused by sending unsolicited email, for others the lure of a quick buck from Viagra and Nigerian money scams is too much to resist.


New anti-spam legislation

Spam has become so much of a problem in terms of cost to companies operating networks and mail servers,

lost productivity in the workplace, and the general annoyance to users receiving unwanted mail

that Governments around the world have or are in the process of introducing legislation that makes the activity illegal.


The Spam Act 2003 came into force in Australia on the 10th of April 2004.

The legislation sets down a series of penalties for Australian businesses that continue practices that are in breach of the legislation ranging from on the spot infringement notices through to hefty daily fines for organizations.

There should be no impact on your business from this legislation provided you adopt accepted best practices.

The legislation covers both email that originates in Australia and email that is sent to addresses located in Australia.

A series of easy to read guides have been developed by the Government to help business comply with the legislation.

To be both responsible in the way you send email marketing and comply with the new legislation there are three simple steps:



The person you are sending mail to must have expressed consent to receive the mail. This is often implemented through Opt-in mailing lists.

 Consent may be inferred based on an existing business relationship with the person you are sending mail to.



You must clearly identify the organization that is sending the email in any email marketing



You must provide a working mechanism that allows the recipient to opt out from receiving any future such correspondence.


Tips to avoid being a spammer

Don't use software that harvests or automatically collects email addresses from published sources.

Don't use or procure lists of email addresses which have been produced using harvesting software

Always generate lists using opt-in techniques, if for example you would like to send a monthly newsletter to your clients, start by sending an email asking them if they would like to be on your mailing list and require that they confirm via reply email before adding them to the list.

If you do collect email addresses for marketing purposes, keep records of where and when the addresses were obtained for future reference.

Make sure your website is not referenced or linked from email which could be construed as spam, this is often referred to as being 'spamvertised'.

Spam doesn't mean bulk unsolicited commercial email, it just means unsolicited commercial email, sending a single targeted email without consent is still considered to be spam.


Good email marketing practices

There aren't too many people out there that enjoy receiving spam, so when your customers or potential customers see you dealing with this issue responsibly it will generate a positive response.


Content considerations

Make sure the subject line of the email you send reflects the content.

Clearly identify at the start of the message who is sending the correspondence and why the client is receiving it.

It's a good idea to include both plain text and HTML versions of your email. Not everyone can read HTML formatted email and those users that can't or won’t see your message unless a plain text version is also included. Look for multi-part encoding options in the program that you use for creating your email.


List creation

Just because a client provides you with their email address during a business transaction it does not mean you can add them to a mailing list or send them commercial email. If you intend to use email addresses collected in online forms make sure you advise the user and request that the opt-in for such correspondence.

When collecting email addresses on any forms on your website there are a number of steps you can take to help the end user:

Even if you don't use mailing lists or send regular mail-outs to clients you should state this on the form how you intend to use the email address. If you don't the end user either has to guess or go digging through your policies for an answer.

Check boxes with a default value can be misleading or easily overlooked. Defaulting to yes will collect more addresses for your list but might end up adding people to your list that don't want email. Equally defaulting to No might miss people who are happy to receive promotional emails. Consider using a series of radio buttons (with no default) as it forces the user to actively make a selection.

If you run multiple lists or send different types of email give the user the choice of what type of information they would like to receive, eg differentiate between service announcements, new product releases and special offers.

Can I get new customers via email marketing?

If you're not allowed to send email to people who you don't already have a business relationship with it immediately raises the question 'can I get new customers via email marketing?'

You can in a number of ways.

Viral marketing is a good example of how to do this, you can run a mail-out to people who you have permission to send email to. The body of this email should encourage the users to forward this mail on to their friends and associates. The email may contain some humorous content (like those animated car adds you've probably seen) or a competition/giveaway of some form.

Many marketing companies do maintain opt-in lists which have been created in accordance with best practices that you can pay a fee to utilize. The subscribers to these lists will have indicated interest in receiving mail on particular topics. Just be careful to do the research and ensure you're satisfied that the list construction is compliant with the new laws.

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