Australia’s spam and telemarketing regulator, ACMA, has released new compliance priorities and expectations, which should prompt businesses to review their email, SMS and telephone marketing to ensure compliance.
Following a busy enforcement period for Australia’s spam and telemarketing regulator, with businesses paying more than $15 million in spam and telemarketing penalties over the last 18 months the Australian Communications and Media Authority (ACMA) on Monday announced its compliance priorities for 2024-25 and released a Statement of Expectations for businesses on consumer consent to conduct telemarketing and e-marketing.
ACMA compliance priorities introduced for 2024-25
- Misleading spam messages: The ACMA’s priority is to enforce spam rules to stop commercial messages being misleadingly sent as “service” or non-commercial messages (to avoid the spam rules). The ACMA is especially concerned about messages from businesses where there may be a high risk of harm to consumers, like interactive wagering or financial services.
- Online retail sector: The ACMA will focus on compliance in the online retail sector by educating businesses about spam rules and taking formal action where serious and systemic matters are found.
Consent expectations for businesses using e-marketing and telemarketing
The Statement of Expectations sets out the ACMA’s recommendations for businesses using consent to undertake email, SMS, and telephone marketing. The Statement is an outcome-focused guide for business to ensure they have consumer consent, which the ACMA says is designed to meet consumer expectations and the minimum legal requirements.
The ACMA’s recommendations include:
- Use express consent based on clear terms and conditions that are readily accessible at the point consent is obtained and not hidden away in fine print, lengthy privacy policies or multiple click-throughs;
- Use consent terms and conditions that cover:
- what the consent is for (including for what types of products and marketing channels);
- who will use the consent (including affiliates and partners);
- how long the consent will be used; and
- how the consent can be withdrawn;
- Consider using a double opt-in when obtaining consent, such as an email confirmation that consent has been given;
- Consider carefully whether to rely on inferred consent, for example, only where there is a clear, current or ongoing relationship with the individual and the goods or services being marketed are directly related to that relationship;
- Have easy to use unsubscribe facilities in all commercial electronic messages;
- Action unsubscribe requests as quickly as practicable, and always within a maximum of five business days; and
- Ensure individuals who want to unsubscribe are given a straightforward option of unsubscribing from all marketing messages (not only some).
The Statement also warns of practices that will generally not meet the ACMA’s compliance expectations:
- Do not place contact details on a marketing list without consent (for example, a visit to a website is unlikely to constitute consent, and publication of contact details does not mean consent has been given);
- Do not use consent that is old, where a consumer would not expect it to still apply;
- Do not require consumers to log in to accounts or provide personal information to unsubscribe;
- Do not infer consent where there is an unclear relationship with a consumer or where the call or message is not relevant to an established relationship;
- Do not infer consent from one-off purchases by consumers, including where phone numbers or email addresses are obtained to send receipts or tax invoices;
- Do not use pre-checked tick boxes on forms;
- Do not use bundled consents (where a single request for consent is for multiple purposes and does not allow a choice about each purpose);
- Do not use refer-a-friend arrangements (consent must be given by the person to whom it applies);
- Do not continue to conduct marketing after an unsubscribe request is received on the basis that someone else is using the email address or phone number (the unsubscribe request applies to the address or number regardless of who may be using it); and
- Do not re-contact consumers who have unsubscribed to encourage them to re‑subscribe.
Key takeaways for businesses
- The release of the ACMA’s compliance priorities and Statement of Expectations is a useful reminder to businesses to ensure their email, SMS and telephone marketing practices meet the relevant legal requirements. This is especially for the online retail sector, which is a target area for the ACMA in 2024-25.
- While the ACMA’s Statement of Expectations is not binding, it does indicate its approach for enforcing the consent requirements for email, SMS and telephone marketing practices.
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.
