The law guiding SMS in Australia

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2085856619_2fc5162c5b_bAlthough SMS marketing has proved very effective, businesses can get slapped with millions of dollars worth of fines for violating spam laws if they aren’t careful.

It can be a little unclear when implementing SMS strategies where to draw the line between effective marketing and spam. Spam refers to unwanted or unsolicited messages, for example promotional messages relating to a product that the owner of the handset has no prior experience with.

The current legislation regulating spam is the Spam Act 2003. This is enforced by the Australian Communications and Media Authority (ACMA). However, it is also the responsibility of individual businesses to make sure their own behaviour is complicit with the Act. The Act covers all forms of commercial electronic mail, including email, MMS, IM and, most importantly for us, SMS.

The Act sets out that commercial electronic messages must have the following:

Consent from recipients – recipients may give express consent, or consent may be inferred from their conduct and ‘existing business or other relationships’. An example of inferred consent includes customers being contacted after purchasing an item that included an ongoing warranty. Inferred consent is also established when recipients are subscribers to magazines or other publications, members of frequent flyers clubs, registered users of online services and more.

Express consent is when the recipient specifically signs up to receive SMS messages.

Identification – messages must contain clear and accurate information about the person or organisation that authorised the sending of the message. A great way to ensure this is to include a Sender ID with the name of your company. Failing to do this, the message must begin the message with the business or company name.

Unsubscribe option – all marketing or promotional messages must contain a functional ‘unsubscribe’ feature, that allows the recipient to opt out from receiving messages in the future.

In the event of a breach, the Act provides a range of enforcement options and the ACMA determines the appropriate action on a case-by-case basis. Formal warnings are used by the ACMA to indicate concerns about alleged incidents and allow for the business or individual to take compliance action to prevent any future contraventions.

There are also exemptions from the Act, either because the information being sent is not marketing related but informational or because of the nature of the organisation sending messages. Charities, religious and non-government organisations (like educational institutions), and government bodies in Australia are exempt from the Act as long as the content of the messages relate to the goods and services provided by the organisation.

While implementing SMS strategies, keep this information in mind, but for further information visit www.acma.gov.au or call us today on 1300 764 946.

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Felicity Cullen

Marketing assistant at Esendex