Staying on the Right Side of the Law: Email Marketing Compliance in Australia
With changes to tracking and cookies happening establishing your owned marketing resources is more important than ever. Building your own email database is now a no brainer and it pays to know the rules.
In looking around for the most up to date Anti-Spam rules for this article, I stumbled across an excellent article on Klayvio’s website - essentially summarising the anti-spam rules in Australia. This relates to email marketing and text messaging for marketing. These rules have changed a lot over recent years and it’s worth understanding the basic principles to ensure you stay compliant if you are using email and other kinds of communication channels like SMS.
Gone are the days you could BUY CONTACT DATABASES from a literal catalogue of demographic tags you liked for your client’s strategy (mostly names and street addresses as we posted everything through Australia Post back then)!! Yes this used to be standard! However personal data in our online world has become highly valuable and treating your audience respectfully and considerately is not only essential for compliance but also for building lasting customer relationships.
Klayvio, Squarespace, Shopify (to a certain extent) and mailchimp; the platforms I come across most often, have helpful built-in protections so will often prompt you about the rules when you are setting things up which is handy, but it helps to have a broad understanding of the intention of the rules as well.
Just a note - that this information is not legal advice. It’s always best practice that you consult with your legal people if you are unsure that you comply with the Spam Act and all other applicable laws in connection with your marketing program.
It’s quite a long article, so I have summarised it for you here, with my take on it, and included the links if you would like to read the complete, original version.
The three main requirements under the Spam Act for sending messages are:
Obtain Proper Consent: The Act emphasises the need for consent, whether express or inferred, from recipients before sending commercial electronic messages (CEMs).
Provide Identification Information: Every CEM must include your legal business name or company name and Australian business number.
Include an Opt-Out Method: The opt-out mechanism should honor the recipient's request to unsubscribe within five working days. It must not require a fee, extra personal information, or account creation to unsubscribe.
How can people join your marketing list?
There are two types of consent for signing up people to your database: express and inferred. The Spam Act requires express consent in most cases, which means someone must explicitly opt in to receiving marketing messages from your organisation.
Express Consent
Express consent means someone directly gives you permission to send them marketing messages via a certain channel. This means that you cannot send someone a CEM before they expressly tell you to do so — even if the message you want to send will ask for their permission.
When someone consents to receive one type of electronic marketing messages, this does not count as permission to send them any other type of communication. For instance, if you have someone’s consent for email, you can only send them emails — it does not count as permission to send SMS, MMS, or instant messages.
There are several ways someone can give you their express consent, including:
Signing up via a form
Checking a box on a website
Telling you over the phone
Note that someone simply giving you their information for some other reason (email, phone number, etc.) does not count as them granting permission to message them.
Inferred Consent
Inferred, also called implied, consent is permissible in only a few scenarios. It is also typically a grey area, so express consent is preferred and recommended in all cases.
Inferred consent typically comes into play when you have an existing relationship (a “provable, ongoing relationship”) with the recipient, and the marketing you want to send them is directly related to that relationship. You may have a business relationship with someone who provided their contact information when they subscribed to a service, has an account, or is a member. If the marketing is relevant to that relationship, you may have the person’s inferred consent to send messages relevant to your business relationship with them.
Importantly:
Message requirements under the Spam Act
In addition to obtaining the proper consent, the Spam Act requires that you include the following information in every customer communication:
Your legal business name, or your company name and Australian business number
Contact details for your business or a link to your business’s contact details
An opt-out mechanism (e.g., an unsubscribe link) that:
Honors the request to unsubscribe within five working days
Does not require the payment of a fee
Does not force recipients to provide extra personal information or create or log into an account to unsubscribe
In emails, the typical approach is to add contact details and opt-out instructions to the footer, and let the sender email address indicate your business.
Best practices
While not mandatory, following best practices can enhance your email marketing efforts
Include at least one link to your website
Send messages during appropriate hours in the recipients' local time - 8am - 8pm is a good guide
Avoid common spam-related phrases
Provide value for your customers in every message
Use emojis and acronyms carefully and with thought as to your audience and how they might be received
Avoid overloading recipients with excessive messaging
REFERENCE LINKS
Read the full article at https://help.klaviyo.com/hc/en-us/articles/4406840113563
Understanding explicit vs. implicit consent
