The Federal Trade Commission in the U.S.A. is requesting comments regarding the CAN-SPAM Act. It has been 14 years since the CAN-SPAM Act was introduced and there is a growing community of ethical marketers, privacy proponents and others questioning the effectiveness of the Act in preventing unsolicited email from being sent (i.e. spam email messages). Our equivalent in Australia is the Spam Act 2003.
Why a review of the Spam Act 2003 is needed
As I work in email marketing training and consulting I’m primarily interested in how the Act affects email messages. In the Mailchimp classes that I deliver I always cover the Spam Act in basic terms. I continuously however am amazed at how non-restrictive the Spam Act is. Although the Act is better than nothing, there are huge issues with the wording/guidance of the Act. Perhaps the Act was sufficient in 2003 but it is high time that the Act is revisited. ACMA itself does a very good job with resources it provides in trying to reduce spam however the Act itself is weak.
Here are a few examples of where I believe that the Australian Spam Act 2003 fails.
The Spam Act 2003 allows for spam exemptions. What this means is that certain organisations, or communication, may be exempt from certain parts or all of of the Spam Act. Government bodies, registered charities and educational institutions need to adhere to the identification parts of the Act however don’t need to allow for recipients to unsubscribe.
Registered charities, registered political parties and educational institutions are exempt from the Act. ACMA
I’m really not sure why charities and educational institutions are excempt from the Act (never mind political parties and the government). The Act as it stands actively encourages charities and educational institutions to send unsolicited email marketing to people and to make it difficult for those recipients to unsubscribe. Why shouldn’t people have the right to unsubscribe themselves from any marketing emails no matter who the message is from?
The Act states that every commercial electronic message must contain a functional and legitimate ‘unsubscribe’ facility (except for certain organisations as noted above) and that unsubscribing must be at low cost, or no cost, to the user. What the Act is therefore implying is that a marketer can charge the recipient of marketing a small fee to unsubscribe; I understand that the thinking behind this may be related to SMS (text messaging) where it will cost the recipient of a marketing SMS a small cost to unsubscribe from future SMS messages. It should surely be made very clear however that the marketer must pay any costs associated with unsubscribing and not the recipient.
The Australian Spam Act 2003 includes a provision for inferred consent. The rules regarding inferred consent may be read on the ACMA website. Even if consent is inferred then an unsubscribe link needs to be included in each commercial message however this inferred consent provision is way more harmful than beneficial in my opinion. According to the Act, a persons email address must be available publicly to be able to be able to infer consent (among a few other provisions); in 2003 when the Act was published there were far fewer people using the internet but nowadays it is very simple to find most peoples email addresses online. Inferred consent is way too open to interpretation for 2017 and the coming years.
Where to for the Australian Spam Act 2003
The Spam Act 2003 makes a start in reducing the number of unsolicited email marketing messages that Australians receive. I believe that the Act could be more effective in light of how people use the Internet in 2017. Perhaps in Australia we should look to Canada’s Anti Spam Law when considering changes needed to our Spam Act.