Best Practice for e-Marketing Consent, According to the ACMA

A business needs consent from a person to send them an e-marketing communication such as an email, SMS or instant message.

It will be a marketing communication if at least one of the purposes is to offer, promote or advertise goods, services, land, or a business or investment opportunity.

Consent is also needed to make telemarketing calls to a number on the Do Not Call Register.

These restrictions are set out in legislation (the Spam Act 2003 and the Do Not Call Register Act 2006) and enforced by the Australian Communications and Media Authority (the ACMA).

The ACMA recently published a document setting out its expectations for business using consent to conduct telemarketing and e-marketing. It describes the document as a guide to best practice rather than legal advice or a definitive compliance guide.

Here are some of the key takeaways.

Get express consent – don’t rely on inferred consent

Although you can rely on inferred consent, the ACMA recommends getting express consent from a person for telemarketing or e-marketing to them.

The ACMA says that you should consider carefully whether to rely on inferred consent – for example, using it only if you have a clear, current or ongoing relationship with the individual, and the products you are marketing are directly related to that relationship.

You should not infer consent:

• where there is an unclear relationship with a consumer;

• where the call or message is not relevant to an established relationship – the ACMA gives an example here of a bank contacting a current savings account customer to advertise insurance;

• from one-off purchases by a consumer;

• just because the consumer gives their phone number or email address for receiving a receipt or tax invoice, or visits a website, or sends an email to a business; or

• just because an email address or phone number has been published.

What express consent should look like

Use clear terms and conditions to get consent, and make them readily accessible.

The ACMA says your consent terms and conditions should cover:

• what the consent is for – this includes what types of products (not just a generic consent) and what marketing channels;

• who will use it – mention affiliates and partners if applicable;

• how long it will be used; and

• how it can be withdrawn.

When getting consent, the ACMA says you should consider using a “double opt-in”. An example of this is where an email confirmation is used to confirm that the consent has been given.

Some of the things to avoid when getting express consent are:

• using pre-checked tick boxes on forms (so that the person has to opt out, rather than opt in, to marketing);

• using a “bundled” consent – where a single request for consent is used for multiple purposes; and

• “refer-a-friend” arrangements – consent has to be given by the person who will be the recipient, not by someone else.

How long does consent last?

The ACMA also thinks that consent does not go on forever – it has a use by date. The ACMA statement says that you should not “use consent that is old, where a consumer would not expect it to still apply”. The ACMA statement includes an example of a consent to receive telemarketing that is more than 3 months old. It describes this as a “stale” consent that should not be relied on unless the consumer has agreed to a longer period under terms and conditions.

In our experience, most businesses do not put an expiry date on the marketing consents in their terms and conditions. However it might be worth considering a periodic communication to your mailing list to ask if the recipient wants to continue receiving marketing communications from your business.

An easy getaway

Having an unsubscribe facility is a requirement for e-marketing, and the ACMA has expectations that it should be easy to use. Consumers should not have to login to accounts or provide personal information to unsubscribe. However, the ACMA thinks these practices are acceptable if the information to be given by the consumer is the electronic address to which the message is sent, or the consumer has agreed to clear terms and conditions that require a login.

The unsubscribe facility should allow the consumer to unsubscribe from all marketing messages – a “universal unsubscribe”. It should not only include the ability to unsubscribe from some types of messages. Where options are provided as to which types of messages can be stopped, the instructions should be very clear.

Once the unsubscribe request has been received, it needs to be actioned as quickly as practicable, and in any event within 5 business days.

An unsubscribe should be treated as final – don’t re-contact an unsubscribed consumer to ask them whether they want to re-subscribe, unless they have given you consent to do this after they have unsubscribed.

Needless to say, there should be no charge for unsubscribing (the routine cost of an SMS reply is fine).

In the case of telemarketing, a person should be removed from call lists if they ask, and a telemarketing call should be ended immediately if the recipient indicates in any way that it should be stopped.

Sending mixed messages

A question that often comes up is whether an electronic message should be classified as commercial or a purely “service” communication.

In many cases a communication will have both purposes – there is service related content but also marketing messages.

The law says that if any of the purposes is commercial, it must be treated as e-marketing. The ACMA notes this in its statement of expectations. To decide if a message is commercial, the ACMA recommends that businesses carefully consider:

• the content of the message;

• the way in which it is presented; and

• the content that can be accessed from links, banners, contact details, etc in the message.

The ACMA’s view is that “a link to a web page with commercial content is likely to mean that the message is also commercial”. This is quite a sweeping statement, and businesses should review their service message content to see if it could be caught as commercial because of links in the message.

Outsourcing risks

The ACMA statement reminds businesses that if third parties are used for e-marketing, oversight and assurance processes need to be in place to ensure that proper records are kept of marketing and consents. The ACMA has the power to require production of these records.

Action steps

The ACMA’s statement of expectations presents a good opportunity to review your current e-marketing policies and procedures to ensure that they are in alignment with those expectations.

Your business may want to consider:

• Are you relying on inferred consent when express consent is preferred?

• Is your express consent wording clear and unbundled, with a double opt-in?

• Do you check with your subscribers on whether they want to stay on your marketing lists?

• Are you properly classifying commercial and non-commercial messages?

• Is your unsubscribe facility fit for purpose?

• What is your risk exposure from using third parties from e-marketing?

We work with many of our clients on advertising and marketing compliance. Please contact us if you need legal advice on these matters.