Australian Communications and Media Authority (ACMA) recently imposed a $302,500 penalty on Outdoor Supacentre Pty Ltd (Outdoor Supacentre), a four-wheel drive and camping accessory retailer, for sending over 83,000 marketing text messages in breach of the Spam Act 2003 (Cth) (Spam Act).
The Spam Act requires organisations to have the recipient's consent to send marketing materials and each communication must include a functional unsubscribe option.
In this case, consumers complained over a period of more than 10 months that Outdoor Supacentre sent text messages without a functional unsubscribe option and continued to send marketing messages after they had withdrawn consent to receive such communications. It was after these complaints that the ACMA initiated an investigation.
Outdoor Supacentre submitted to the ACMA that the marketing messages had been sent by mistake, blaming the delivery of messages on a previous data migration between service providers. However, it did not provide evidence of any quality assurance processes or compliance checks undertaken to prevent the marketing text messages from being sent.
The ACMA was not satisfied that they made a mistake of fact.
In addition to the fine, the ACMA also accepted a three-year court-enforceable undertaking from Outdoor Supacentre, committing it to appoint an independent consultant to review its compliance with Spam rules.
Key takeaways
While the Spam Act has been around for quite a while, organisations should not be complacent about their marketing communications. The ACMA are consistently active in investigating breaches and taking action.
Businesses can take the following steps to prevent breaching spam laws:
- conduct regular testing and risk assessment – many privacy and data issues have historically emerged from unintended consequences of software upgrades. In this case, Outdoor Supacentre attributed the unsolicited marketing messages to a data migration process
- check your settings – in the same way hyperlinks can be broken, unsubscribe text may fall off communication templates. Even if the unsubscribe option is on the text, are unsubscribe notifications being actioned?
- investigate and respond to customer complaints – if customers are telling you something is wrong, investigating the issue before a regulator is involved can likely save your business the financial cost of a penalty and/or enforceable undertaking.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.