AUSTRALIAN E-MARKETING CODE OF PRACTICE - DEVELOPED BY THIS ACA ENDORSED COMMITTEE

					Date: 26 Apr 2005

		SPAM LAW AND YOU - JENNY WILLIAMS IDEAGARDEN CONSULTING
				Copyright of Ideagarden Consulting

This is an extract from some of the issues of the Australian eMarketing Code of Practice that 
Jenny WILLIAMS will be explaining at the OIC Seminar on Thu 26 May 2005

"The MESSAGE ORIGINATOR may send a COMMERCIAL COMMUNICATION to a RECIPIENT if this
person is someone where:

a) 	there is an existing relationship e.g. customer, member, subscriber AND there is a 
	reasonable expectation that they will receive these communications

b) 	No relationship exists however there is potential for there to be one AND you have 
	received that individuals express or inferred consent to receive commercial communications.

EXPRESS CONSENT

Express Consent is where the potential recipients has taken an active step to indicate consent 
for example they have OPT ED -IN by check ing a box on one of those forms or DOUBLE OPT ED -IN 
where they have taken the additional step of responding to an email confirming their consent. 

INFERRED CONSENT 

Inferred Consent means that there is a reasonable expectation on the part of the recipient that 
they would receive these emails either because of an existing relationship with the message 
originator or perhaps because the message relates to the recipients business and the work related
email address published in the public domain (e.g. on the internet) . 

You cannot use harvesting software to collect these addresses and the published information must
also include a work function or position so that your communication can relate to the business 
function or duties of the recipient. 

If this published address contains any instructions indicating that the recipient does not wish 
to receive commercial communications, you can't use it.

Inferred consent can also be obtained through CONDUCT e.g. you received a business card with
email address on it. 

In any of these cases, the onus is on the message originator to ensure that they can establish 
that there is a REASONABLE EXPECTATION on the part of the recipient that such a message
might be received

The process of gaining consent must be clear and you must also keep records of how you obtained
the consent .

The safest path to ensuring that anyone to whom you send a commercial communication will welcome 
it is to maintain good records and have proven prior contact and express consent before sending 
any commercial communication.

CONTENT

If the intent is to inspire an action from the recipient (like purchase a product or service) It 
must also contain:

a) full company name
b) address
c) company registration details
d) postal address (no PO box)
e) email address
f) fixed telephone number
g) where appropriate, details of terms and conditions for a particular promotion.

UNSUBSCRIBE

It must also contain clear, conspicuous and functional UNSUBSCRIBE facility allowing the 
recipient to optout of receiving future commercial communications (actionable after 5 days).

It is advisable to also maintain a list of these unsubscribes so that if you purchase any lists 
or co-market with a third party, you can remove them.

FACTUAL COMMUNICATION

The provisions of this part of the act is not intended to cover FACTUAL COMMUNICATION (even 
though they may have some form of commercial benefit) whose purpose is to notify or inform the 
recipient (i.e. not to influence the individual in making a purchasing decision) E.g. Newsletter, 
information about a product recall.

This is Australian law and is only enforceable within Australia or Australian owned businesses
overseas.

Technically if a foreign national was in Australia when the "offence" was committed (or p
ossibly if a complaint was raised when they are in the country - although doubtful it would stick) 
then they could be prosecuted.

Prepared by:
Jenny WILLIAMS

Board member Digital division of Advertising Federation of Australia
Participant in working group that developed the e-marketing code of practice for the 
Anti-SPAM legislation

Copyright of Ideagarden Consulting
T: 61 2 9420 3815
F: 61 2 9420 3419
M: 0438 203 494
E: jenny@ideagarden.com.au