In October 2023, Ticketek was found by the Australian Communications and Media Authority (ACMA) to have breached the Spam Act 2003 (Cth) (Spam Act) for sending ‘commercial electronic messages’ to people without their consent. Through its investigation, ACMA discovered that during 2022 Ticketek had sent approximately 41,000 marketing texts and emails without the consent of recipients and about 57,000 texts and emails to people who had previously unsubscribed. As a result, Ticketek was issued an infringement notice with a penalty of $515,040.
Ticketek argued that because the emails they sent had factual information in them, they were not ‘commercial electronic messages’ under the Spam Act. However, ACMA decided that even though the purpose of the messages was to provide factual information, since they also contained links to Ticketek’s website and social media pages which contained advertising material and promotions for upcoming events, they were ‘commercial electronic messages‘ and therefore Ticketek needed the consent of the recipients to send them. As such, this was found to be a breach of the Spam Act.
The Spam Act is the federal legislation regulating electronic messages (including emails, SMS and instant messages) with an Australian link.
What is a ‘commercial electronic message‘?
Under the Spam Act (section 6), ‘a commercial electronic message is an electronic message, where, having regard to:
- the content of the message; and
- the way in which the message is presented; and
- the content that can be located using the links, telephone numbers or contact information (if any) set out in the message;
it would be concluded that the purpose, or one of the purposes, of the message 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…”.
A message is a ‘commercial electronic message’ if there are links within the message that take you to advertising or promotional material for goods and services. This commercial purpose does not have to be the main purpose of the message – it only has to be one of the purposes. When a message falls under this definition, the Spam Act requirements in relation to consent and unsubscribe facilities apply.
What is a ‘designated commercial electronic message‘?
In section 16(1) of the Spam Act, there is an exception to the prohibition against sending unsolicited commercial electronic messages. This arises when the message is considered a ‘designated commercial electronic message’. These messages also do not have to contain a functional unsubscribe facility.
Under Schedule 1 of the Spam Act, a ‘designated commercial electronic message’ is defined as a message which consists of no more than factual information and accurate information that identifies the authorised sender (eg name, logo and contact details of the individual/organisation who authorised the sending of the message).
Under the Spam Act (sections 16, 17 and 18), a person must not send a commercial electronic message:
- without the consent of the electronic account-holder (ie the recipient);
- without accurate sender information (ie the individual or organisation who authorised the sending of the message and contact details); and
- unless the message contains an unsubscribe function.
Section 2 of the Spam Act provides that consent can be express (ie that the recipient opts in to receive the communications) or inferred (ie by the conduct and the business and other relationships of those concerned). Therefore, it is imperative that commercial electronic messages are only being sent to consumers who have given their express or inferred consent.
As noted above, to comply with the Spam Act, a commercial electronic message must have an easily accessible mechanism for a person to unsubscribe. Section 18(e) of the Spam Act provides that the electronic address used for sending an unsubscribe message must be reasonably likely to be capable of receiving the message and a reasonable number of similar messages for a period of at least 30 days after the messages are sent.
ACMA recommends the below wording is used for recipients to unsubscribe:
To stop receiving messages from us, simply reply to this email with ‘unsubscribe’ in the subject line.
If you no longer wish to receive these messages, please click the ‘unsubscribe’ button below.
Businesses should ensure that a functional unsubscribe facility exists in all commercial electronic messages.
In light of the findings against Ticketek, it is important to ensure that all communications comply with the Spam Act. In particular, there should be caution exercised when sending communications that are largely factual but also contain social media links. If an electronic message has one or more commercial purposes, it will fall under the definition of a ‘commercial electronic message’ under the Spam Act.
ACMA is actively investigating complaints of potential Spam Act non-compliance and issuing fines upon discovering breaches. Over the past few years, ACMA has made similar findings of spam law breaches against several large well-known retailers. Therefore, it is essential that senders of communications comply with the Spam Act.
This article was written by Jennifer Huby, Partner and Kirsten Schreuder, Graduate-at-Law.