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AUSTRALIAN SPAM REGULATOR BARES ITS TEETH Significant penalties issued this year against Optus ($504,000) then Woolworths (a record-breaking $1,003,800) send a clear warning to retailers that the spam regulator (the Australian Communications and Media Authority – ACMA) isn’t afraid to use its powers in its crackdown on unwanted emails (spam). By Bird & Bird Associates Hamish Fraser and Emma Cameron. What is spam? Spam is unwanted or unsolicited marketing message sent by email, mobile phone messaging (SMS, MMS) or instant messaging and governed by the Spam Act 2003, which regulates the sending of messages that are commercial in nature. A message is commercial in nature if it offers, advertises or promotes goods, services, land or business and investment opportunities. What rules apply to spam? Three general rules apply to the sending of spam: • The sender must have the recipient’s consent to receive the marketing message. Consent can be express or inferred. It is also worth noting that in Australia, silence doesn’t constitute consent, and the regulator has indicated that pre-checked tick boxes are not acceptable. • The message must clearly identify the sender. • The message must contain a functional unsubscribe facility. The Optus decision In January 2020, Optus was fined $504,000 for sending unsolicited marketing SMS messages and emails to about 750,000 of its customers who had previously unsubscribed to receiving such messages and emails. The ACMA also found that Optus had sent commercial emails contained within bills. These did not have an unsubscribe facility. Optus also accepted enforceable undertakings to appoint an independent consultant to review its systems, policies and procedures. This penalty against Optus was the largest fine issued for spam at the time. The Woolworths decision In July 2020, the record spam penalty issued to Optus was almost doubled when Woolworths was required to pay $1,003,800 for its spam breaches. The ACMA found that Woolworths had committed multiple breaches of spam laws (five million) when it continued to send unsolicited marketing emails to 1.2 million of its consumers who had previously unsubscribed, in some cases on multiple occasions. The ACMA further found Woolworths had failed to act after being warned by the regulator of potential non- compliance issues. Woolworths also accepted three-year enforceable undertakings to: • Appoint an independent consultant approved by the ACMA to review its systems, processes and procedures. • Implement improvements. • Report to the ACMA as to the status of improvements, complaints received from consumers and all instances of non-compliance. • Undertake training to ensure compliance. Key takeaways for retailers and businesses During the last 15 years of spam laws in Australia, the ACMA has historically taken a reasonably consultative approach with businesses that breach the Spam Act. However, it now appears the regulator is taking a more aggressive approach in its enforcement action and willingness to issue record fines, to encourage compliance. In an increasingly digitalised era, and even more so since Covid-19, retailers and businesses are shifting practices online as a vital way to reach and communicate with consumers quickly and more efficiently. However, with this increase in digital engagement, whether by email marketing, SMS, MMS or instant messaging platforms, retailers must remain aware of and vigilantly comply with spam laws. The Optus and Woolworths decisions provide a timely reminder for all retailers and businesses to check whether they have appropriate and sufficient systems, policies and procedures in place to meet and maintain their legal requirements under the Spam Act, including ensuring that: 1. Any commercial messages sent to customers via email, mobile phone messaging (SMS, MMS) or instant messaging (and can include in the form of a bill), contain a clear, working unsubscribe function. 2. Consent has been obtained from every customer to whom such messages are being sent, and that such customers have not since unsubscribed from receiving such messages. 3. Customer consent lists remain up to date. 4. Any potential compliance issues are investigated and corrected as soon as possible from becoming aware of such issues (eg, following a customer complaint or if the ACMA issues a warning or infringement notice). LEGAL About Hamish Fraser Hamish is a leading partner in technology and communications in Australia. He is an expert on commercial issues and regulatory matters across all facets of the information technology and communications industries. About Emma Cameron Emma is a Senior Associate in the Technology Transactions Commercial Group in Sydney. She has a broad range of experience advising clients on various matters in the technology, media and telecommunications sectors. About Bird & Bird Bird & Bird is one of the world’s leading international law firms advising industries where technology, regulation and intellectual property are driving change. With its strong Australian presence, clients enjoy global reach across various practice areas. SEP, 2020 RETAIL WORLD 67