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Unintentional Spam Liability Indicates Higher Obligations Under the Spam Act

E-marketing is a crucial activity for many businesses, and is used across a wide range of industries. Sending electronic communications to existing or potential customers is one well-established way for businesses to engage with their customer base.

As a result of the wide adoption of this type of marketing, the Australian Communications and Media Authority (ACMA) has become increasingly active in regulating electronic communications sent from businesses to individuals under the Spam Act 2003 (the Act).

By way of example, the ACMA recently issued a formal warning to IGEA Life Sciences for breaching the Act after the company was discovered sending unsolicited marketing emails.

IGEA, which promotes health and wellness products, maintains that the messages were sent as a consequence of a software problem that it experienced. The company alleges that when customer addresses were migrated across to a new e-marketing platform, inadequate checks were in place. This led to customers continuing to receive marketing emails even after having submitted an unsubscribe request

Although the ACMA did not dispute IGEA’s version of events, it issued a formal warning anyway. The IGEA experience suggests that breaches resulting from poor work practices (or software glitches) can be penalised even where there is no deliberate breach. This means that even if you do not realise, nor intend to engage in spamming practices, you may still be liable under the Act.

The ACMA powers are not limited to issuing warnings. Other powers that the ACMA frequently exercises under the Act include accepting enforceable undertakings and issuing penalties for infringements. The ACMA is also empowered to lodge proceedings in the Federal Court to seek an injunction preventing certain conduct. Penalties for repeat corporate offenders range up to $1.7 million per day.

The ACMA provides a brief overview on its website as to how you can avoid being caught out by spam legislation. An overview of the basic requirements for e-marketing as set out in the Act can be accessed here, and information regarding penalties for infringing these laws is accessible here.