29 Jul 2021 by Sarla Fernando

  • Data Compliance and Privacy
  • Governance
  • Privacy and Compliance

SPAM Regulations 2021

Its hard to be in the data-driven marketing industry and not hear the word SPAM – whether that is (hopefully just reading about other) businesses that have been found to have breached SPAM laws and then held accountable by the regulators (re “fined”) or if you are part of a responsible marketing team that is almost tripping over itself to be compliant with the SPAM Act. Either way SPAM is a key topic of data driven marketing.

So how is it that quite an important change in the SPAM Act (specifically the SPAM Regulations 2021 under the SPAM Act) that took effect from April 1st 2021 went under the radar and is a key topic of conversation with marketers now. The change came quietly, in relation to the important impact it would have on some marketers.

The changes and what it means for marketers

When someone receives a commercial electronic message and makes an “unsubscribe” request via options provided to use in the message, they should not be required to:

  • Provide personal information;
  • Use a premium service;
  • Log into or create an account; or
  • Pay a fee or charge to the sender or a related person (with some exemptions).

Prior to this change the SPAM Act required that senders have an “easy” unsubscribe when opting out. The wording allowed for a range of interpretations. This change now makes it very clear that organisations sending commercial electronic messages must make it straightforward for recipients to unsubscribe.

This change in regulations seems to be a response to mounting concern and frustration from consumers that report on the difficulty and/or complicated processes businesses put in place to make unsubscribing from communications more complex rather than clear. This change in Regulations is intended to fix that.

The updates may raise some concerns from part of the market who have their subscription preference centers set up behind a wall/ within an account. This is especially so in industries where customers may have sensitive information held securely within a “Member-only” environment. There is no stock standard answer to this as some businesses are required by industry specific legislation to uphold certain requirements for Member data and in those instances it would not be uncommon for subscription centres to also sit within the environment. From a common sense point of view it would seem as simple as saying that the unsubscribe for ‘commercial electronic messages’ (that do not fall within the exception) can sit outside the Member account, but compliance might require a change in technology. ADMA encourages all marketers to get their legal teams to review the Explanatory Statement that accompanies the SPAM Regulations 2021 to see what they need to do to be compliant.

The other change that came with this update is that fax messages are now specifically excluded from the definition of “commercial electronic messages” in the SPAM Regulations. This is because fax messages are covered by other legislation that contains provisions prohibiting marketing faxes from being sent to numbers registered on the Do Not Call Register.

What should Marketers do?

It is time to check the options you currently provide for an “unsubscribe request” in your electronic communications. Ensure that the process is simple.

ACMA Compliance priorities 2021-22

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