When Can I Send An Email or SMS? | How To Avoid Breaking Spam Rules
Sending your business contacts special offers, opportunities and other marketing information can be a wonderful way to grow your business. However, Australia has strict laws in place around mailing lists and other ways of reaching out to your customers and clients. These laws are contained in the Spam Act 2003 (Cth) (Spam Act). In this article, we break down some of the key things you need to know about these laws, and how they apply to your business.
1. Commercial Electronic Messages (CEMs)
Under the Spam Act, a commercial electronic message (CEM) is a message sent by email, SMS, MMS or instant message that essentially offers, advertises or promotes goods, services or investment opportunities.
Any time you want to send a promotional e-mail or SMS to someone through your business, you need to ensure you follow the rules of the Spam Act.
2. When can I send a CEM to my customers or clients?
Before you send a CEM to anyone, you need to ensure that they have given their consent. The Spam Laws promote an ‘opt-in’ system where people can choose whether they want to receive e-mails and other commercial electronic messages from businesses.
3. What is consent?
There are two types of consent you can get from people:
Express consent – where a person knowingly gives their consent for you to send them a CEM. People can give express consent by:
filling in a form – for example, on your Website you might have a pop up ‘Sign up to our mailing list or SMS list’ form
ticking a box on your website – this is where your Website Terms and Conditions and or your Click Wrap Terms and Conditions ensure that a customer ticks a box that allows you to send them CEM’s
giving it over the phone
giving it face to face
Keep in mind that you can’t e-mail or SMS a customer or client to get their consent, as this is a CEM. You also need to be able to prove that someone has given you express consent, so keeping records of consent is important.
Inferred Consent – this is where someone hasn’t directly given their consent, but through your existing business relationship and their conduct, you can infer that there is consent.
For example, you message or e-mail a current customer about the service that they have purchased from you.
4. Format of CEMs
Before you send a CEM you need to ensure you have included:
Sender details and your ABN or business name clearly identified
Contact details so there is a clear way for people to contact you
Unsubscribe Option – there needs to be a free, clear and quick unsubscribe process.
5. The importance of airtight business legals
Now that you know that consent is necessary to send out a CEM, you need to make sure that this consent is sought correctly in your business legals. Merely saying in your Website Terms and Conditions that you might send promotional materials is not going to cut it.
Your Website Terms and Conditions and any Click Wrap Terms and Conditions available on your website need to be drafted in a way that ensures a client or customer is giving consent to being sent CEM’s. That’s why copying other Website Terms and Conditions can land you in trouble (listen to our podcast on this here). The Terms and Conditions need to be airtight, to the point and ensure you follow the Spam Act. For more information on Website Documents that small businesses need read our post here.
Once you have consent and follow the other rules of the Spam Act there’s no reason why you can’t communicate with your customers and clients through CEMs.
Still have questions? We’re always here to help so if you’re unsure don’t hesitate to get in touch! You may find our article Building Your Small Business | The Beginners Handbook helpful too.