Anti Spam Law: Unsubscribe facilities do not infer consent

Regulators are increasing efforts to pursue those in breach of the anti-spam law and they can impose substantial penalties - up to $1.1 million per day - against a corporation that repeatedly breaks the law.

Recently, two infringement notices of $110,000 were issued to a major telecommunications company for sending out 20,000 SMS messages. The messages promoted the company’s entertainment service, with the sender identification shown merely as a three-digit number.

Clear and accurate sender identification, along with accurate information about how to contact the sender, is one of three legal requirements of sending commercial electronic messages with an Australian link.

The message must also contain an unsubscribe facility to allow the recipient to opt out of receiving messages from that source, and it must be sent with the recipient’s consent. It can be express consent or inferred from existing business and other relationships - such as where the individual is a member of a club, a subscriber to a service, or a client the organisation deals with on an ongoing basis.

Consent may be inferred if an individual conspicuously publishes a work-related electronic address, such as on a website, or in a brochure or magazine, and the address is not accompanied by a statement that the person does not want to receive unsolicited commercial electronic messages. This inference of consent is limited to commercial electronic messages relevant to the person’s business, functions or duties.

In one case, a company admitted that its principal method of obtaining email addresses for its databases and lists was the use of address-harvesting software, or obtaining harvested address lists from external parties.

It sought to infer consent from the failure of email recipients to request removal from its lists. However, the courts found that there was no obligation to reply to such a message, and that the mere presence of an unsubscribe facility does not infer consent. Penalties of $4.5 million were imposed on the company and $1 million on its director.