Australian Spam Act 2003 - Part 2 - Consent
Tuesday, July 8th, 2008Consent
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).
