You’ve probably received emails from stores you’ve shopped at regarding sales and promotions. As a business owner, you may even be sending or thinking of sending these emails to your customers as well. 

A question you might ask is, “Where do I draw the line?”. There’s a difference between sending a friendly email to your customers and providing them with unwanted communication. 

Thankfully, there are laws and regulations to follow that set a standard on what is appropriate when it comes to email marketing and what is not. In this article, we’ll cover do’s and don’ts of email marketing. 

What Is Email Marketing?

Email marketing is when businesses send emails directly to their customer base. It’s an effective way to reach a mass number of people to let them know about any promotions, events or new products. 

While it seems very harmless, there is a line when it comes to unsolicited emails. First, let’s go through the basics of email marketing. 

How Email Marketing Works

A customer or visitor to a business’ website will be given the option to provide their email in order to receive marketing communication or updates. Alternatively, if they are already providing their details (for example, if they’re checking out) then they might simply have the choice to tick a box agreeing to the business sending them marketing emails. 

Once the individual has given their permission, they will then receive emails to their inbox whenever the business decides to send them.

Some businesses also let their customers choose what types of marketing emails they would like to receive and how often (for example, once a week or a few times a month).  

Is Email Marketing Legal In Australia?

Yes, email marketing is legal in Australia. However, there are certain limitations around it. A business cannot just send any kind of email to anyone, but rather, certain rules and regulations need to be followed. 

We explore the main ones you need to look out for in this article, so keep reading to learn more! 

Is It Legal To Send Unsolicited Emails In Australia?

No, it is not legal to send unsolicited emails in Australia. According to the law, businesses need to gain the permission of customers before they can send them marketing emails (we’ll cover this in more detail below). 

Do I Need An Unsolicited Consumer Agreement For Email Marketing?

For email marketing, it is unlikely that you will need an Unsolicited Consumer Agreement. These agreements are usually only needed when a salesperson approaches a potential customer in an attempt to sell them goods. 

Unsolicited Consumer Agreements are usually used for door to door sales or telemarketing. If you plan on pairing your marketing emails with phone calls, then you may need to look into getting an Unsolicited Consumer Agreement. 

What Are The Advantages Of Email Marketing?

Sending emails to customers is a popular marketing strategy for a reason – it’s relatively easy, cost effective, fast and can reach a large number of people all at once. It’s also easier for businesses to measure metrics and send targeted messages.

For example, if emails regarding a ‘20% off sale’ generates more website traffic than a ‘buy one get one free’ promotion, the business is able to deduce from that what types of advertising their customers respond to.

There’s evidence to show that Australians react relatively well to email marketing tactics. In fact, in 2020, Australia had the second highest click-to-open rate in the world for marketing emails with 14.8% of users participating. 

Email marketing can be a great way to communicate with your customers, however, it’s important to follow the relevant rules and regulations when engaging with it.    

Does The Spam Act 2003 Apply To Email Marketing?

The Spam Act 2003 is the main federal legislation that sets the boundaries businesses need to follow when using online marketing tactics. The main takeaways from the Spam Act are summarised below: 

  • All marketers need to identify their business as well as a way to contact it
  • Every recipient of the email needs to have given consent to receiving it first
  • The emails must provide a way to unsubscribe from them   

Express Vs Inferred Permission In Email Marketing

Permission to receive marketing emails can be given either expressly or be inferred. 

Express permission is when a customer specifically writes or tells you they would like to receive marketing emails. Inferred permission is given when a customer has a continuous relationship with your business. For example, if they are a subscriber to your services and receiving marketing emails is part of it. 

No matter how the permission is granted, the rules set out in the Spam Act still apply. 

What Is The ‘Do Not Call Register’?

The Do Not Call Register contains a list of numbers that businesses are not allowed to contact for marketing purposes. This is regulated by the Do Not Call Register Act 2006.

Under the Act, you cannot contact any number on the Do Not Call Register for marketing purposes unless the person has given their consent to do so, or you are an exempt entity (such as a charity).

If your business is engaging in telemarketing practices, it’s important to familiarise yourself with the Telecommunications (Telemarketing and Research Calls) Industry Standard 2017, as this sets out additional regulations that could affect your business activities.

Australian Consumer Law Obligations For Email Marketing

The Australian Consumer Law (ACL) has been established to protect consumers from unfair trading or advertising practices. When sending customers marketing emails, it’s not just your obligations under the Spam Act you need to be aware of. You also have duties to consumers under the ACL. 

They key responsibilities you need to undertake according to the ACL are include: 

All marketing emails (and business practices in general) should keep ACL obligations a priority – to properly discuss your obligations under the ACL, contact a legal professional today. 

Privacy Act 1988 And Email Marketing

If you’re sending out emails to consumers, then you are in possession of their personal information. According to the Privacy Act 1988 and the Australian Privacy Principles (APPs), this means your business will likely need to have a Privacy Policy in place. 

A Privacy Policy lets consumers know what is being done with their personal  information. This includes  how it is being stored, how long it will be kept for and the ways in which it will be used. 

It’s also a great way to let consumers know you’re looking out to protect their privacy and are being transparent. 

What Is Considered Personal Information In Email Marketing?

Privacy obligations apply when a business collects any kind of personal information, not just emails. Personal information can include  any facts about an individual that could be used to identify them. This includes: 

  • Name
  • Address
  • Phone Number
  • Bank details 
  • Photograph 
  • IP address
  • Sensitive information 
  • Biometrics 

It is important to be aware of your privacy obligations so your business practices can be legally compliant! Chat to an expert privacy lawyer at Sprintlaw if you need help with your privacy obligations. 

Key Takeaways

Email marketing is a common strategy for businesses to communicate with their customers, however, it must be done in accordance with the legislative framework. To summarise what we’ve discussed: 

  • Email marketing is when a business sends emails to their customers regarding sales, promotions, new products or just general advertising 
  • Email marketing is legal in Australia, however, it needs to be compliant with the regulations of the Spam Act
  • Businesses must have the consent of customers before sending marketing emails, identify their business and have a link to unsubscribe 
  • Consent can either be express or inferred  
  • You likely won’t need an unsolicited consumer agreement for marketing emails alone
  • Marketing emails should also be compliant with the ACL
  • If your business is sending marketing emails, it possesses the personal information of its customers and you should look into getting a privacy policy  

If you would like a consultation on Australian email marketing laws, you can reach us at 1800 730 617 or for a free, no-obligations chat.

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