ACMA's most recently publicised enforcement action, against Cellarmaster Wines Pty Ltd (part of the Woolworths group) acts as a timely reminder that every business must take sufficient care in managing its responsibilities under the Spam Act 2003 (Act).

Swaab has observed that ACMA has ramped up enforcement action in respect of spam complaints over the last six months, imposing more sanctions and higher penalties than in previous periods.

Under the Act it is illegal to send, or cause to be sent, unsolicited commercial electronic messages, including email, instant messaging, SMS and MMS (text and image-based mobile phone messaging) of a commercial nature. Corporate information or announcements that are purely factual and that do not market any products or services are excluded. Messages covered by the Act include product offers, promotions, competitions, advertisements and factual information that includes those types of content.

Under the Act, every "commercial message" that is sent must:

  1. be sent with the recipient's consent;
  2. contain accurate information about the person or organisation that authorised the sending of the message and how to contact them; and
  3. contain a clear, obvious and functional 'unsubscribe' facility to allow the recipient to opt out from receiving messages from that source in the future (and any unsubscribe requests must be processed within five working days of receipt).

Cellarmaster Wines was penalised for sending messages to customers who had previously opted-out of receiving marketing messages. Some messages were sent without an opt-out facility. These errors resulted in a $110,000 infringement notice which was paid by Cellarmasters in May 2013.

For further information please contact:

Matthew Hall, Partner
Phone: +61 2 9233 5544

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