The Australian Communication and Media Authority (ACMA) recently issued Optus with an infringement notice of $504,000 for multiple breaches of Australian spam laws. ACMA found that between June and December 2018, Optus had sent SMS and email marketing messages to customers who has previously unsubscribed to such communications, and sent commercial emails without including an unsubscribe option.

The $504,000 represents the second largest infringement notice issued by ACMA, and demonstrates ACMA’s continuing efforts to enforce Australia’s spam laws. In addition to the infringement notice, Optus gave a court enforceable undertaking to ensure future Spam Act compliance, and committed to engage an independent consultant to review its systems, policies and procedures for compliance with spam rules.

This case demonstrates the need for business to proactively manage their compliance with spam laws. Three questions should be asked to ensure you comply with the Spam Act when sending SMS or email marketing material:
1. Has the customer consented to receiving the electronic message?
2. Does the marketing material clearly and accurately identify the sender of the message and how they can be contacted?
3. Does the marketing material contain a clear, conspicuous and functional ‘unsubscribe facility’ (i.e. way to opt out of further communications) in each direct marketing communication?

Businesses should ensure that Spam Act compliance is on their checklist for developing marketing material, and ensure that all internal stakeholders are aware of their requirements under the Act.

At CIE Legal, we frequently assist clients with the review of digital marketing materials and processes for Spam Act compliance and associated privacy and data protection issues.

Contact partners Raph Goldenberg or Andrew Thompson for more information.


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