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Anti-Spam Act 2003

Anti-Spam Act 2003 Australia

IntelliSMS makes it easy for our clients to comply with the Australian SMS Anti Spam Act 2003.

Most organisations are not completely familiar with the Act, so below we endeavour to provide clarity before you commence any SMS campaign.

The Act prohibits sending commercial electronic messages without the following conditions:

• recipient consent;
• sufficient sender details, including contact details for the customer to call back; and
• functional opt-out options.

Failure to have any of the conditions above in a commercial electronic message will amount to a breach of the Act attracting a civil penalty. The sender of the message and the authoriser of the message are liable under the Act in the event of a breach. Also, a party providing carriage for the message is also liable under Act.

Relevantly for SMS Aggregators, the “Ancillary Contraventions” provisions in the Act attach to each of the above conditions and are drafted broadly and encompass “a person who…is in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of either of those provisions“. These provisions are designed to capture businesses such as Messaging Gateway Providers who do not provide authorisation to send the message but provide facilitation.

Responsible body for enforcing the Act

ACMA (Australian Communications and Media Authority)
Website www.acma.gov.au

What is a Commercial Electronic Message

Messages where the purpose is:
• to offer to supply goods or services; or
• to advertise or promote goods or services; or
• to advertise or promote a supplier, or prospective supplier, of goods or services; or
• to offer to supply land or an interest in land; or
• to advertise or promote land or an interest in land; or
• to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
• to offer to provide a business opportunity or investment opportunity; or
• to advertise or promote a business opportunity or investment opportunity; or
• to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or
• to assist or enable a person, by a deception, to dishonestly obtain property belonging to another person; or
• to assist or enable a person, by a deception, to dishonestly obtain a financial advantage from another person; or
• to assist or enable a person to dishonestly obtain a gain from another person; or
• a purpose specified in the regulations.

The Act Covers the following Messaging Scope

1. The message originates from Australia
2. The sender of the message is present in Australia
3. The sending companies’ head office is in Australia
4. The Device used to receive the message is physically in Australia
5. The recipient is physically in Australia

Messaging must comply with the following Sections of the Act

1. Unsolicited commercial electronic messages must not be sent – Section 16
2. Identity – Section 17
3. Unsubscribe – Section 18

Unsolicited Messages

Consent must be received by the Sender before commercial electronic messages can be set. It is the onus of the Sender to prove that they have consent from the intended recipient.
If consent is withdrawn then there is no consent to send commercial electronic messages.

Identity Information

The Message must contain the following information:
1. Clear identification of the legal name of the Sender.
2. Accurate information about how the recipient can readily contact the Sender.
a. Note the ACMA does not consider an SMS virtual number that cannot be called adequate information for contacting the sender of the                   message.
b. Intelli’s voice activated Virtual numbers do comply with these requirements.
c. Further content can be put in the message that provides adequate contact information when using a standard Virtual Number that                       cannot be called.

Unsubscribe

A commercial electronic message must contain a method for the recipient of the message to unsubscribe from a future commercial electronic message from the Sender.

The law states to the recipient should be able to respond to the sender address of the message – either the from email address for email message of the source address of an SMS message.

The unsubscribe message must clearly state the process to unsubscribe. Eg “Reply Stop to Unsubscribe”.

Consent

The Spam Act 2003 states that for all commercial electronic messages sent by a business or organization, meeting the consent requirement is mandatory. There are two types of consent – express and inferred.

Express consent

When an individual or organization first provides their email address, and you plan to send them a commercial electronic message, you must first get their express 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

Inferred consent can occur:

  1. via an existing business or other relationship, where there is a reasonable expectation of receiving commercial electronic messages
  2. via conspicuous publication of a work-related electronic address because it is accessible to the public, or a section of the public, and if:
  3. if the address is not accompanied by a statement saying no commercial messages are wanted
  4. the subject of the message is directly related to the role or function of the recipient.

Consent FAQ

How do I prove sufficient consent to send messages?

Keeping records is essential, as the burden of proving consent lies with the sender. Many e-mail and SMS systems have the capacity to record opt-ins and opt-outs of your database as a built-in process. However, consent, message-sending activity and unsubscribe requests can be incorporated into a simple spreadsheet or sophisticated customer relationship management system.
Using a double opt-in process, where the subscriber confirms a subscription request by reply email or SMS before they are subscribed is a good way to ensure that consent has been recorded.

Can I electronically message customers to obtain their consent to send messages?

No. Unsolicited commercial electronic messages cannot be used to gain consent.

Can I use pre-ticked boxes to obtain consent to send messages?

No. Pre-checked tick boxes—for example, on a website where people can join a mailing list—are not an acceptable way of gaining consent.

Do I have consent if recipients don’t object or unsubscribe?

No. Silence does not constitute consent.

Can someone subscribe or give consent on someone else’s behalf?

No, not unless they do so using that person’s email account. Consent to receive commercial electronic messages must be given by the relevant electronic account-holder—the person responsible for that account.

Can I contact someone who has published their email or phone number online?

Consent is only inferred if the contact details are published and:

  1. they are accessible to the public
  2. they are not accompanied but a statement saying commercial messages are not wanted
  3. there is a strong link between what you’re promoting and the recipient’s business.