Three golden rules for sending
marketing messages by email and SMS
There are 3 golden rules for sending marketing messages
by email and SMS:
- Have the consent of the recipients
- Identify the sender
- Have an unsubscribe function.
If the rules are not followed, the email and SMS may be
spam – unsolicited commercial electronic messages – and the
sender prosecuted under the Spam Act 2003.
Telco First is the latest business to be penalized for
breaching the Spam Act by ACMA (the Australian
Telecommunications and Marketing Authority). Refer ACMA
Media Release 10 March 2021.
In this article we examine how Telco First breached the
Spam Act, and the three golden rules to avoid when sending
marketing messages. A marketing commentary prepared by
Michael Field follows.
What did Telco First do?
Telco First conducts direct marketing by means of
Telemarketing Calls and CEMs (Commercial Electronic
Telco First sent more than 65,000 illegal spam text
messages through another business that used artificial
intelligence so that SMS text messages were sent to more
than 40,000 phone numbers between March and August 2019.
Telco First is a repeat offender. In September 2018 when
trading as Lead My Way, it paid a $285,600 infringement
notice issued by ACMA for making telemarketing calls to
numbers on the Do Not Call Register without consent.
This time Telco First has paid a $79,800 infringement
notice issued by ACMA for illegal spam -text messages. In
addition, it has given a court-enforceable undertaking to
ACMA to appoint a consultant to review its spam compliance
measures before conducting further e-marketing.
How did Telco First break
the three golden rules / breach the Spam Act?
Telco first broke all three of the golden rules: by
sending messages without the consent of the recipients, by
not identifying the sender and without an unsubscribe
The three golden rules are found in subsections 16(1),
17(1) and 18(1) of the Spam Act 2003. This is a
- No consent from the recipients (subsection
16(1) Spam Act):
Unsolicited commercial electronic messages must not be
sent … if the relevant electronic account holder has not
consented to the sending of the message.
- The message must identify the sender
(subsection 17(1) Spam Act):
Commercial electronic messages must include accurate
sender information about the individual or organisation
who authorised the sending of the message … which
clearly and accurately identifies the individual or
organisation; and includes accurate information about
how the recipient can readily contact that individual or
- The message did not have an unsubscribe function
(subsection 18(1) Spam Act):
Commercial electronic messages must contain a functional
unsubscribe facility … which includes a statement to the
effect that the recipient may use an electronic address
set out in the message to send an unsubscribe message to
the individual or organisation who authorised the
sending of the first mentioned message presented in a
clear and conspicuous manner.
The penalties were calculated as follows:
Subsection 16(1) – 7 contraventions – penalty $29,400
Subsection 17(1) – 12 contraventions – penalty $25,200
Subsection 18(1) – 12 contraventions – penalty $25,200
Note: a subsection 16(1) contravention attracts twice the
size of a subsection 17(1) or 18(1) contravention.
The three golden rules to
avoid sending spam
These are the three golden rules - the advice ACMA gives
to Avoid sending Spam (which is its interpretation of
subsections 16(1), 17(1) and 18(1) of the Spam Act).
Rule 1 - Get Permission – there are two types of
Express permission which can be given by filling
in a form; by ticking a box on a website; over the phone; or
face to face. Sending an electronic message to ask for
permission is not permitted because that is a marketing
message. Keep a record when a person gives permission.
Inferred permission which can be given be given if
the recipient has knowingly and directly given their address
and it is reasonable to believe they would expect to receive
marketing from the business. For example, if someone has
subscribed to a service, has an account or is a member, then
marketing is relevant to the relationship. It must be an
ongoing relationship, not someone who has just bought
something from the business.
Take care with marketing lists. Whether using or buying
another’s list, the business is responsible for making sure
it has permission for addresses used.
Rule 2 - Identify yourself as the sender
In your message you must:
- Accurately identify your name or business name
- Include correct contact details for you or your
If someone else sends messages on your behalf, the
message must still identify you as the business that
authorised the message. Use the correct legal name of your
business, or your name and the Australian Business Number
The information must remain correct for at least 30 days
after you send the message.
Rule 3 - Make it easy to unsubscribe
Under the Spam Act, every commercial message (phone,
text, SMS) must contain an ‘unsubscribe’ option that:
- Presents unsubscribe instructions clearly;
- Honours a request to unsubscribe, within 5 days
- Does not require payment of a fee
- Does not cost more than the usual amount for using
the address (such as a standard text charge)
- Is functional for at least 30 days after you sent
Examples of unsubscribe messages:
Email To stop receiving messages from us, simply
reply to this email with ‘unsubscribe’ in the subject line.
OR If you no longer wish to receive these messages, please
click the ‘unsubscribe’ button below.
SMS Reply STOP Unsub (1800-number)