General information, not legal advice. The Australian Communications and Media Authority (ACMA) enforces the spam rules and explains them on its page on avoiding spam. This page reads one clause of the Act; consent in general, identifying yourself and unsubscribing are on ACMA’s page.
The rule covers business inboxes
The Spam Act does not set business email aside. For an email address, the account-holder it protects is “the individual or organisation who is responsible for the relevant email account”. ACMA’s summary is direct: “If you plan to send marketing messages or emails, you must first have consent from the person who will receive them.”
The public registers in this guide do not supply addresses in any case. ABN Lookup holds no address, email or telephone details for a business. So the addresses a business finds usually come from the other business’s own website or letterhead, which is the situation this clause deals with.
The clause, condition by condition
Schedule 2, clause 4 begins with the general rule: consent “may not be inferred from the mere fact that the relevant electronic address has been published”. Then comes the exception for conspicuous publication. It applies only if all four of these are true:
- a
The address lets the public, or a section of it, send messages to a particular person in their work (an employee, a director or officer, a partner, an office-holder or a self-employed individual), or to whoever holds a particular office or position, or performs a particular function or role, in an organisation.
- b
The address “has been conspicuously published”.
- c
It would be reasonable to assume the publication happened with the agreement of that person or, for an office, position, function or role, of the organisation.
- d
The publication carries no statement that the account-holder does not want unsolicited commercial electronic messages at that address, and no statement to similar effect.
Even then, the consent reaches only messages relevant to the person’s work-related business, functions or duties, or to the office, position, function or role concerned.
Read from the compilation of 10 March 2016, which the Federal Register of Legislation gave as the latest when checked. The full text is on the Federal Register of Legislation.
Where the exception stops
As this guide reads the clause, the relevance test does most of the work. As an illustration, a published address for a council’s procurement role is published for procurement; a message about something else is outside the consent the clause supplies. A “no unsolicited offers” line beside the address takes the exception away altogether.
ACMA adds that inferred consent “is not as reliable as getting someone’s express consent”. And the Act draws a hard line around collecting addresses by software. Address-harvesting software is software “specifically designed or marketed for use for” searching the internet for electronic addresses and collecting them, and under ACMA’s summary of the Act you cannot use or supply such software, or a list made with it.
Every commercial message must still identify who sent it and carry a working way to unsubscribe, as ACMA sets out. ACMA also lists common mistakes, among them automated “welcome journeys” sent without adequate consent and unsubscribe processes.