Articles > Startups

When Does Email Marketing Become Spam?

November 13, 2020   Daniel KatzPhilip Evangelou

Any business using email marketing should be mindful of not straying into any activities that could be defined as SPAM – defined for Australian law in the Spam Act 2003 (otherwise known as ‘the Spam Act’).

Here is how you can abide by the Spam Act:

1. Get Permission

Firstly, permission, either expressed or inferred, must be obtained from the person you wish to send marketing emails to.

Expressed permission means that the person who gave it has actual knowledge that they will be receiving your marketing emails. Express permission is granted when someone specifically provides you with their information (Ie – their email address), and consent to receive emails. In essence, the more honest a business is with its customers in order to ensure that they are aware of any future email marketing, the more successful a business will be in obtaining express permission.

Inferred permission is a form of implied consent provided through prior courses of dealing. If the person who is receiving the emails is already a customer, and the emails are related to the products and services that your business sells, this is likely to suffice as inferred permission from the customer.

2. Identify Yourself as the Sender

Secondly, regardless of whether you are an individual or a business, you must clearly and accurately identify yourself in the marketing email. With this, it is important that the email includes all accurate and relevant contact details as to how the customer can contact you or your business.

Additionally, the information provided in the email must remain correct, and valid, for 30 days after it is sent. Any change in the information must be communicated with the customer.

3. Provide easy ‘unsubscribe’ options

A clear and easily accessible ‘unsubscribe’ option must be available to the customer. Under section 6 of the Spam Act, a business has up to five days to grant a customer’s request to unsubscribe. If a customer has requested to unsubscribe, but there appears to be an issue with their account, it may be wise to contact them before the five days have passed, to avoid any potential issues with the Australian Communications and Media Authority (ACMA). An example of a legally sufficient ‘unsubscribe’ option is as follows:

To stop receiving messages from us, you can unsubscribe to our weekly email by clicking ‘Unsubscribe’ at the top right of the email”


“To stop receiving messages from us, reply “STOP” to this email if you wish to unsubscribe”.

Emails not Covered by the Spam Act 

It is important to distinguish between the types of emails that are, and are not, authorised by the Spam Act. Any emails of pure factual matter (logos, contact details, etc.) are likely to be exempt from the Spam Act. This is also the case for emails sent by permitted bodies (governments, political parties, charities etc.)

Other Actions Prohibited by the Spam Act

The Spam Act prohibits several actions. In particular, software used for harvesting addresses is strictly prohibited in its supply, acquisition and/or use. Furthermore, being an accessory to anyone who contravenes the Spam Act is also prohibited.

Consequences of Sending Spam

Sending spam will invoke the power of the ACMA to issue significant fines. These fines range from $220,000 for a single breach and as much as $1,000,000 for subsequent breaches. 

To wrap up

Not only can send spam emails skew the perception of your business by customers, but it can also be illegal. When email marketing, businesses must be vigilant that they do so in a manner legally compatible with the Spam Act. If marketing emails are sent without adhering to the elements discussed above, heavy penalties will likely apply. 

If you need any assistance regarding the legality of your marketing campaigns, our commercial lawyers are here to help! Just contact us at 1300 337 997.

About Daniel Katz

Daniel KatzDaniel is a legal intern at OpenLegal, placed in our legal content team. He is currently studying a Bachelor of Laws at the University of Technology Sydney. Daniel's interest lies in economics and media/startup law.

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.