Email is one of the most direct ways to reach customers. In Australia, it also comes with rules that every business must follow. Getting them wrong can lead to enforcement action by the regulator.
The good news is that the rules are simple once you break them down. This guide covers consent, sender details and unsubscribe requirements in plain language. Each section explains what the regulator expects from a business.
The law behind marketing emails
The Spam Act 2003 and the Spam Regulations set out the obligations for marketing messages in Australia. The Australian Communications and Media Authority (ACMA) oversees them. The rules cover email and SMS, and they apply even if someone else sends the messages for you.
ACMA says prior consent is required before you send a marketing message. It also says the regulator can take enforcement action against businesses that break the rules. Read the official ACMA guidance on avoiding spam before you plan a campaign.
Getting consent
There are two types of consent. The first is express consent, which ACMA describes as best practice. The second is inferred consent, which is less reliable.
Express consent
Express consent means the person has clearly agreed to receive your marketing. They might tick a box on a website form, agree on a phone call or say yes in person. You must keep records of who agreed, when and how. If you cannot prove consent, you have a problem.
You also cannot ask for consent by sending an email, because that request is itself a marketing message. Collect consent through a form on your site or face to face instead. A clear tick box with plain wording is the simplest way to do it.
Inferred consent
Inferred consent may apply when a person knowingly gave you their address and would reasonably expect marketing from your business. ACMA says this usually requires an ongoing, provable relationship, such as a subscription, account or membership. The marketing must relate directly to that relationship.
It does not cover messages sent just after a single purchase. Because it is harder to prove, express consent is the safer choice. Asking people directly removes the guesswork.
Bought and borrowed lists
If you buy or rent a list, you remain responsible for confirming consent for every address on it. The rules also prohibit using or supplying lists built with address harvesting software. A cheap list can become an expensive mistake.
Identify who you are
Your message must accurately identify your business name or your own name, with correct contact details. If another company sends on your behalf, the message should identify the business that authorised it. ACMA says to use the correct legal name, or your name and Australian Business Number (ABN).
This information must stay accurate for at least 30 days after sending. If your address or business details change, update your email templates straight away. Older emails sitting in inboxes still need to point people to the right place.
Make unsubscribing easy
Every commercial message needs a working way to unsubscribe. ACMA sets out clear requirements for this facility. It must:
- present clear instructions
- be free to use, or cost no more than the usual charge for using the address
- keep working for at least 30 days after the message is sent
- not require extra personal information, an account or a login
You must also act on an unsubscribe request within 5 working days. After that, stop sending marketing messages to that person. The ACMA fact sheet on email and SMS unsubscribe rules sets this out in full.
Charging a fee, asking people to log in or letting the unsubscribe link expire early are all breaches. Test your own link regularly by subscribing with a spare address and trying to leave. If it takes more than a click or two, simplify it.
Records worth keeping
ACMA says you must be able to prove consent. That means a record for every subscriber, not just a hopeful memory. Store the date, the way they agreed and the wording they saw at the time.
Keep a suppression list as well. This is a simple list of people who have unsubscribed. Check each new send against it, so nobody who has opted out is emailed by accident.
If you use an email platform, check that it handles unsubscribes automatically. Then check again that the process works as promised. The responsibility for the message stays with your business.
Common mistakes to avoid
Many breaches come from small oversights, not bad intent. A rushed campaign can go out with an old footer that lacks your business details. A staff member might add every business card from a trade show to the list.
Most of these slips are easy to catch with a quick review. Build the check into your routine for every campaign. Before you press send, confirm you can show consent for everyone on the list. Check that the footer carries your business name and contact details.
Keep the unsubscribe link easy to see, not hidden in tiny or pale text. Never ask for a login before someone can opt out. Act on every unsubscribe request within 5 working days.
Building a list the right way
Strong email lists come from people who actually want to hear from you. Offer something useful on your website, such as a helpful guide or regular tips, and add a clear tick box for consent. Keep a record of each signup, including the date and the form used.
Good content gives people a reason to subscribe in the first place. The ideas in SEO content that helps your bottom line apply here, because useful pages attract visitors who may later join your list. Growing your audience also starts with traffic, so see these digital marketing strategies to grow website traffic.
Once people subscribe, keep them interested. Email works best alongside your other channels, and the advice on engaging with your social media followers carries over to how you write to subscribers. Talk like a person and answer replies.
Marketing to past website visitors is a different topic with its own considerations. For background, see retargeting and why it creates buyers. Email is separate from retargeting ads, so check the rules that apply to each channel.
Frequently asked questions
Does the Spam Act apply to small businesses?
Yes. ACMA says prior consent is required before sending marketing messages, and the rules apply to businesses generally. Size does not exempt you.
Can I email someone who gave me their card at an event?
It depends on what they agreed to. Express consent is best, so ask clearly and record it. Handing over a card does not always mean they expect marketing from you.
How long do I have to remove someone who unsubscribes?
ACMA says unsubscribe requests must be actioned within 5 working days. The unsubscribe option must also keep working for at least 30 days after you send the message. An automated system makes both rules easier to meet.
Who sends the email, me or my email provider?
The rules apply even if someone else sends messages for you. You remain responsible for consent, and the message must identify your business accurately. Check how your email provider handles consent records and unsubscribes.
This article is general information only and is not legal advice. Laws and processes change, and your situation may differ. Please speak with a qualified lawyer about your own business.