There are two federal government Acts (laws) that apply to the sending of unsolicited commercial electronic messages .
The Spam Act 2003 came into effect on 10 April 2004 and prohibits the sending of unsolicited electronic messages defined by the Act to include messages sent by e-mail, instant messaging and Short Message Service (SMS) and Multimedia Message Service (MMS). To send unsolicited messages in these formats you must have consent.
As of July 31, 2010, the federal government extended the Do Not Call (DNC) Register Act 2006 to include fax. Previously the Do Not Call Register only applied to telemarketers ( Voice ), it now applies to all marketing documents that are faxed, it is mandated by law ( see the ACMA website ) . . Any business that sends an unsolicited fax to a number on the register, or arranges for a fax to be sent to a number on the register, will be in breach of the legislation and could face penalties. To comply with the law all fax list which are intended for fax marketing purposes must be washed against the ACMA, Do Not call Register before a fax broadcast is sent.
Ensuring Fax Compliance
To ensure compliance, Navion will remove on your behalf all Do Not Call registered fax numbers that exist in your list, this process is known as list washing. All you have to do is email us your list and we will wash it against the Do Not Call Register prior to sending your Broadcast. Our customers (the advertiser) will still be responsible for managing their list, this will include removing fax recipients who are not on the register but have request to be taken off their fax list. Our customers are also required to ensure the following information appears in the fax document:
- the name of fax advertiser
- the Australian Business Number (ABN) of the fax advertiser,
- the contact details of the fax advertiser
- the details of how the recipient can opt-out of receiving further faxes, this is a statement to the effect that the fax recipient may opt out of receiving any future faxes, this message must include an email address or toll free voice or fax number
Ensuring SMS Compliance
All SMS messages require consent. There are two types of consent—express and inferred.
When an individual or organisation first provides their mobile number, and you plan to send them a commercial electronic message, you must first get their expressed consent.
Express consent comes in many ways—filling in a form, ticking a box on a website, over the phone, face-to-face or by swapping business cards—as long as the recipient is aware they may receive commercial messages. You cannot send an electronic message to seek consent—this is in itself a commercial message because it seeks to establish a business relationship.
Businesses should keep a record of all instances where consent is given, including who gave the consent and how. Under the Act, it is up to the sender to prove that consent exists.
Inferred consent can occur:
- via an existing business or other relationship, where there is reasonable expectation of receiving commercial electronic messages
- via conspicuous publication of a work-related electronic address because it is accessible to the public, or a section of the public
- if the address is not accompanied by a statement saying no commercial messages are wanted
- the subject of the message is directly related to the role or function of the recipient.
Questions you need to ask yourself when using SMS
- Do I have consent from the customer to send commercial messages to this number, and can I show where and when the customer gave their permission?
- Will the customer be able to identify who has sent the message and how to contact me?
- Does my message contain an unsubscribe feature? That is, after reading the message, will it be obvious to the customer how they can stop receiving further messages if they no longer want to receive them?