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Consent

Continuing on from my Part 1 overview I’m taking a quick look at the first part of particular interest to the Australian Government. Consent. I’m drawing heavily on the Spam Act 2003 – A practical guide for business and hopefully condensing it down so it all makes sense for you. So ‘Consent’. What is it, how does it work, and how does it apply to you today?

Consent comes in two forms (yes, you get an extra one free of charge). EXPRESS, or INFERRED. What are these, and are you operating within them?

Express Consent

Express consent is where you have received direct indication that it’s permissible to send commercial electronic messages to the recipient. Examples as provided by the guide include:

• the addressee has subscribed to your electronic advertising mailing list
• the addressee has deliberately ticked a box consenting to receive messages or advertisements from you
• the addressee has specifically requested such material from you over the telephone

This is all pretty obvious stuff, I personally find it interesting that there is no time-frame proviso where publics must re-opt in periodically. Often client email lists are years old and as more corporations move into email-delivery I wonder if this will become a consideration. Anyway, we find typical unsubscription messages are “I don’t remember providing my email address”.
Also what happens if a parent company has several sub-brands which also wish to correspond to recipients who have opted into the company ‘chain’ at some point? Certainly many questions and as we move along to ‘inferred consent’ you might find some answers.

Inferred Consent

Inferred consent is predicated on the key phrase ‘reasonable expectation’ and gives grounds for corresponding directly with a public who has not specifically ticked that little checkbox on your website saying they want to receive an email from you. This is fair enough, it’s not like when you walk into a car dealership and are asked to fill out a form allowing the salesman to talk to you. So how does this work practically?

• Email address has been provided in the general expectation of follow up communication or used in day to day transactional correspondence. The provision of a business card in the expectation of communication relating to corresponding business activities.
• Online product registration/warranties
• When an addressee has conspicuously published their email address, if the correspondence relates to their published business activity. The example provided, is emailing a plumber about the sale of plumbing supplies, but not cheap pharmaceuticals. Or about their inheritance in Nigeria. In an interesting aside in the SPAM Act overview, if the potential recipient has ‘No Spam’ or words to that effect published with their email it can correspondingly be ‘inferred’ that they do not wish to receive a message.

But wait.. there is another avenue worth remembering. Inferred consent can be established on the basis of an ‘existing relationship’, as long as it is ‘consistent with the expectations of the addressee and their conduct’. (Spam Act 2003 – A practical guide for business: 8). This is of course slightly subjective, but again, common sense prevails. Some examples.

• persons who have purchased goods or services which involves ongoing warranty and service provisions
• registered users of online services
• subscribers to information/advisory services
• financial members of a club
• professional association members
• members of frequent flyer or buyer clubs
• employers and employees
• contractors

An ‘existing relationship’ cannot be inferred in the case of once-off purchases, such as a T-Shirt or event attendance for example. There’s more examples provided by the government, but I’m sure it’s clear where this is headed and if you’re concerned about your list, feel free to research on the government’s website or contact us and we’ll help you as much as we can!

As more and more of you transition from traditional direct marketing to an online relationship, I’m sure many have older lists which you may be unsure how to deal with in confidence. One thing that’s good is that it doesn’t matter when or how the list has been used. It’s up to you however to ascertain whether each addressee satisfies either the Express or Inferred consent requirements.

It then becomes your responsibility to ensure you seek consent from your publics to send them ‘commercial electronic messages’.

‘I’m still not sure if I have been provided with that consent’! Yes some of us are definitely in this category. Here we would recommend you follow them up to see if you can send them commercial electronic messages. I think this is good relationship management and will show you to be conscientious and take your public’s privacy and personal information seriously. Only good can come of this, even if it’s a little counter intuitive. But it’s not, if you think about it.

Best practice and double opt-ins

It’s interesting to see that out trusty Government also recommends the use of double-opt-in list, where the user’s email is submitted, or added to a list. They then receive an email asking them to confirm their ‘opting in’. Standard practices dictates that after perhaps 14 days, either they have confirmed their addition by responding positively to the confirmation email, or a negative or non-response ensures they are not included. We facilitate this practice with our Mailbox software and are happy to implement it for you if you desire.

Can I use addresses out of a industry index?

While the use of email harvesting software for the purposes of sending unsolicited commercial electronic messages is prohibited, lists generated manually (even from viewing websites) are not. Again, be aware of the ‘no spam’ disclaimers you may find.
Same goes for purchased contact lists, fine to use them, but be careful to make sure the requirements of the Spam Act have been met (consent has been gained).

We spend a lot of time advising on best practice for our many clients who use our email marketing services, but for those of us in Australia, we happen to be the beneficiaries of some of the most progressive (and strict!) spam legislation in the world, so it’s worth getting to know and ensuring that your campaigns are conforming with some reasonable rules.

Please note I am NOT a lawyer and my writings do not constitute legal counsel of any kind. But hopefully I can present some good information and links to relevant law to help you in formulating your companies SPAM policy. There’s a lot to digest, so I’m going to break it down into this introduction and three bite-size chunks for you to get your heads around over the next month or so.

Now if you’re feeling keen, the Australian government has produced a helpful document called “Spam Act 2003: A Practical Guide for Business”. It’s an invigorating read and if you want to dig deeper it’s a good place to start. However, I’ve read it, chewed it, thought about it and have emerged victorious. So let’s start at the bottom, what is ‘SPAM’ according to the Aussie pollies?

According to the SPAM Act, SPAM is, ‘unsolicited commercial electronic messaging’, and can be a single message sent via Instant Messaging (IM), SMS, other mobile phone messaging (MMS for example) or email. What isn’t covered is non-electronic matter, voice phone calls, pop up windows (sadly) and ‘Messages without any commercial content that do not contain links or directions to a commercial website or location’ (Spam Act 2003: A Practical Guide for Business: 4). For the messages to covered by the law they must either a) originate in Australia or b) contain and Australian link.

Address harvesting software or addresses gained from this type of software must also never be
used. Ever. Ever Ever Ever.

Some of the penalties which might interested you are: A single day of contraventions of the law can result in a fine of $220 000 and multiple breaches can lead to exposure to 1.1 million of fines. So if you’re planning on being caught you better have extra close ties to the Nigerian government and the hidden money of which you are the only beneficiary.

Back to business, how does one work to ensure complicity and avoid legal action and ensure your sending facility isn’t blacklisted through poor practice? There are three primary areas where a business needs to take care and I’m going to give a brief overview as best I can. Again, I recommend taking a look at the government’s document and also other relevant information on the Department of Broadband, Communications and the Digital Economy’s website. The three areas are:

1. Consent
2. Identify
3. Unsubscribe

We’re going to look at each of these in a little more detail in the coming days, but so that I can leave you with something practical here are two quick points on what a message must contain by law.

1. Accurate information about the sender of the message
2. A functional way for the message’s recipients to indicate that they do not wish to receive such messages in the future – that they wish to unsubscribe.

So, easy. If know your list is clean and not sure about what actually has to be in the email to satisfy your legal requirements, just make sure you have accurate and legitimate contact information regarding your business and a way for the recipient to opt out. Easy! But don’t get too excited about your awesome fulfillment of these two simple directives, we’ve got the big three areas in SPAM law to come. Stay tuned!

~Rob :)

Today we got a letter in the mail - not email, but by post. It came from the Anglican Church of Kenya c/o Tear Australia as an accompaniment to our yearly giving summary.

Before you read it - know this about Kenya and Australia (from Wikipedia):

• Per Capita Income (PPP)= US$2600 - an average, which means a few are earning a lot lot more, but lots are earning even less. Per year, not month or week.
• Australia’s PPP = US$39,320 and we complain about the cost of McDonalds.
• Kenya is ranked 152nd on the Human Development Index (a comparative measure of life expectancy, literacy, education, and standard of living for countries worldwide)
• Australia is ranked 3rd and we think we look too old.

Dear Friends,

…Kamwangi supports about 2000 orphaned children, and 150 children who had dropped out of school are now attending regularly.

A real impact from real money. Really easy - and you don’t even notice the difference. What an opportunity to make a real change in people’s lives with a business. There’s two of us in Brown Box - we have been a part of helping 500 households in Kenya.