An email or text is a commercial electronic message when, judging by its content, the way it is presented and what its links and contact details lead to, one of its purposes is to offer, advertise or promote goods, services, land or an interest in land, or a supplier of any of them. For an agent, the test is written in the language of the trade: the Act names land in three of its paragraphs.
General informationAbout the definitions in the Spam Act 2003, not legal advice about any message. The Act is on the Federal Register of Legislation; the ACMA explains how it applies on its page of common issues and mistakes.
First, an electronic message
Section 5 defines an electronic message by where it goes: to an address connected with an email account, an instant messaging account, a telephone account or a similar account, and its note gives email addresses and phone numbers as examples. Whether the address exists, and whether the message arrives, makes no difference to the definition. One kind is carved out: a message sent by a voice call over a standard telephone service is not an electronic message for the Act’s purposes.
Sending is read widely too. In the Act’s definitions, to send includes an attempt to send.
Land, named three times
Section 6 lists the purposes that make a message commercial. Alongside goods and services, three of its paragraphs are written for property:
“(g) to offer to supply land or an interest in land; or (h) to advertise or promote land or an interest in land; or (i) to advertise or promote a supplier, or prospective supplier, of land or an interest in land”
Spam Act 2003, section 6(1)
The third of those reaches a message that promotes the agent rather than a property. Three further paragraphs do the same for a business or investment opportunity: offering one, promoting one, or promoting the person who provides it.
The test does not wait for a real offer. For these paragraphs it does not matter whether the land, interest or opportunity exists, or whether it would be lawful to acquire it. And the paragraphs are read independently of each other, so a message needs only one of them.
One purpose among several
The test turns on “the purpose, or one of the purposes” of the message, judged on three things: what it says, how it is presented, and the content that can be reached through its links, phone numbers or contact details. A message can therefore inform and promote at once, and still count.
The ACMA makes the same point from its complaints. It says breaches can happen even when a message is mostly factual, and that this can include a bill, an invoice or another account or service message that also carries promotional or sales content. It has had complaints about emails confirming shipping details that also advertise, which can wrongly claim to be service messages and carry no unsubscribe option.
Two other patterns on its list read directly onto a sales pipeline. Automated “welcome journeys”, sent by SMS and email to new and prospective customers, are not exempt, because they often carry commercial content; the ACMA sees businesses sending them without adequate consent and unsubscribe processes. And messages trying to win back customers who have cancelled a subscription service are commercial and must comply with the Act.
What Schedule 1 sets aside
Some commercial messages are “designated”, and designated messages are exempt from section 16, the consent rule, and from section 18, the unsubscribe rule. Section 17, the sender rule, carries no such exemption. Schedule 1 names four kinds:
- Factual information
A message of no more than factual information, with or without directly related comment, plus permitted extras such as the name, logo and contact details of whoever authorised it, the author’s name and contact details, and an employer’s details where the author is an employee. It qualifies only if, without those extras, it would not have been commercial at all.
- Government, parties, charities
A message authorised by a government body, a registered political party or a registered charity, about goods or services that body supplies or may supply.
- Educational institutions
A message authorised by an educational institution to someone who is or was enrolled there, or whose household member is or was, about goods or services the institution supplies or may supply.
- By regulation
Any further kind the regulations specify.
As this guide reads Schedule 1, an agency is none of the bodies in the second and third rows, so for an agent’s own messages the factual route is the one that matters, and it closes as soon as a message offers or promotes anything.
The Australian link
Sections 16, 17 and 18 apply to a commercial message that has an Australian link. Section 7 says a message has one if, and only if, any of these is true:
| Looking at | The link exists if |
|---|---|
| Origin | The message originates in Australia. |
| The sender | Whoever sent or authorised it is an individual physically present in Australia when it is sent, or an organisation whose central management and control is in Australia then. |
| The device | The computer, server or device used to access it is in Australia. |
| The recipient | The account-holder is an individual physically present in Australia when it is accessed, or an organisation carrying on business or activities in Australia then. |
| An address that does not exist | Had the address existed, the message would reasonably likely have been accessed on a device in Australia. |
A sender who did not know, and could not with reasonable diligence have found out, that a message had an Australian link has a defence under each of the three sections, but bears an evidential burden in relying on it.
Addresses that do not exist
Section 16 has a second rule that a guessed or made-up address can trip. A person must not send a commercial message to a non-existent electronic address without reason to believe the address existed, where the message has an Australian link and is not a designated message. It sits beside the consent rule, and it is a civil penalty provision like the others.