Consent for email leads

How to get consent for email sends

Upside.Digital have been working with the ACMA recently on educating both publishers and advertisers on what we see are key areas which publishers and advertisers do not have a clear understanding, and to set some guidelines around these sections.

It should be noted that these guidelines refer to “solus emails” being sent by publishers on behalf of advertisers promoting their product or service. If you are sending any other commercial emails and are unclear how the sections within the Spam Act apply to you, you should seek legal advice.

There are three key elements to the Spam Act 2003 which are:

So what exactly is spam? And how do you get consent for email leads? If you surveyed a group of your friends, the answers will be quite varied but there will be a very small proportion of these people that have actually read the Spam Act 2003. Why is this?  People trust people, and when you’re told something it quickly becomes the truth for you and many other people around you. The problem is that what you’ve heard doesn’t always correspond to the truth, and most people find it too challenging to find this information and base their actions on what’s actually written in the act.

Maybe it isn’t very surprising that the above three key elements would be not be mentioned by your surveyed people, considering that most people would  never have read the Spam Act 2003.

Whilst the below information is not legally binding we wanted to set some further clarity around the various sections of the Spam Act which will assist our publishers and advertisers alike complying with the Spam Act and providing an excellent user experience for t heir database members.

Let’s explain Section 16 of the Spam Act 2003. Here is an extract of section 16 of the Spam Act:

(1) A person must not send, or cause to be sent, a commercial electronic message that:

                     (a)  has an Australian link; and

                     (b)  is not a designated commercial electronic message.

Note 1:       For Australian link, see section 7.

Note 2:       For designated commercial electronic message, see Schedule 1.

             (2)  Subsection (1) does not apply if the relevant electronic account‑holder consented to the sending of the message.

Message must not be sent to a non‑existent electronic address

             (6)  A person must not send, or cause to be sent, a commercial electronic message to a non‑existent electronic address if:

                (a)          the person did not have reason to believe that the electronic address existed;

Ancillary contraventions

             (9)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1) or (6); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (6); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (6); or

                     (d)  conspire with others to effect a contravention of subsection (1) or (6).

What does this mean?

Broken down, this simply means:

1) You’re not allowed to send a commercial email unless the sender has given you the permission to do so,

2) You cannot send a message to a non-existing email address, and

3) You cannot directly or indirectly, break any the first two clauses.

Sounds clear? What this section lack to provide is an explanation on what consent actually is, and how you can get it.

Express and Inferred consent

There are two ways of getting legal consent to enable you to send an email; express consent and inferred consent. Express consent would be if you get a direct consent from a person in one way or another. This is the most common consent you’ll see in email marketing, and it usually involves the user the check a consent box at the time of signing up to an email list.

Inferred consent include ways of getting an indirect consent from a user, which can cause a bit of confusion (and later headache) if you don’t fully understand what this comprises.

To explain inferred consent it’s important to note that the sole publication of an email on a site does not mean it’s consent to receive commercial emails. Most commonly, inferred consent is used in Business-to-Business email marketing, since if a work-related email address is published, it can in some circumstances be considered as inferred consent. It’s important to note though; there must be a strong and clear link between what’s promoted and the work role of the recipient.

The same applies for information on a business card. Thus, there needs to be a strong link between what you’re advertising and the person giving you the business card, for you to send a commercial email to this person. Further, you’re not allowed to approach the person if there’s a statement where the email is published that clarify that commercial messages are not allowed.

Finally, if you argue you have received inferred consent, there must be an unsubscribe functionality in the message you send, which gives the receiving person an opt out possibility from further email sends.

Further guidelines from the ACMA

The ACMA provide further guidelines to help email marketers comply with the Spam Act. However, they’re not always easily available and gathered in one place, so we have put them together for you and explained what they mean.

However, they’re not meant to be considered legal advice, but rather best practice guidelines for how to conduct sounds email marketing:

  • Although it’s not legally binding, the ACMA recommends the use of Double-Opt-In sign up process.
  • You cannot ‘test-the-waters’ and send emails to recipients with the intention to gain their consent. Hence, you need to have consent before sending them a message.
  • It’s not legal to have ‘pre-ticked’ consent boxes in your sign-up process. To be classified as express consent, a person must actively and deliberately give consent to receiving your emails. This can be achieved by either lettings people checking the tick box themselves or to get the consent in another obvious and clear manner, such as the user typing their email address into a ‘consent’ field on the page.
  • You cannot assume that you have consent from a person only because you don’t get a response or unsubscribe. Again, you always need express or inferred consent before sending the message.
  • You cannot give consent on another person’s behalf, unless you have access and the right to use this person’s email account. In this case the consent given by the second person is considered to come from the account-holder. The latter would then need to, if there’s a wish to do so, unsubscribe from the list to not receive emails.

The Spam Act is not the most user friendly publication and it’s not always easy to interpret what’s written in this 58 page document, but with this article you should now have a very good understanding of the laws and pitfalls of how to get proper consent for your sends.

Consent for email leads is the first article in Upside.Digital’s series on compliance with the Spam Act. Make sure to also read and learn what the Spam Act section 17 and 18 comprise by reading our other articles:

We hope the above explanation have been helpful, if you are unsure of any section’s please visit the ACMA’s website for further guidance or seek independent legal advice.

References and useful links:

The Spam Act 2003:

Gaining legitimate consent:

Spam consent:

Express consent is best consent:

Inferred consent and conspicuous publications: