A leopard may not change its spots, but Tiger Airways has undertaken to ensure compliance with the Spam Act 2003 (Cth) after being found liable for spam.
The Australian Communications and Media Authority (ACMA) took action against Tiger Airways Holdings Limited and its subsidiary Tiger Airways Australia Pty Limited for failing to unsubscribe customers from its marketing communications, despite repeated requests from customers to be removed from mailing lists and several warnings from ACMA.
ACMA has since accepted an enforceable undertaking from Tiger Airways Holdings Limited and payment of a $110,000 infringement notice from Tiger Airways Australia Pty Limited. Breaches of enforceable undertakings can result in Federal Court action.
The Spam Act prohibits the sending of ‘unsolicited commercial electronic messages’ to a person (such as by eDM and SMS), unless that person has consented to receiving such messages. An electronic message will be considered a ‘commercial electronic message’ under the Spam Act if the:
- content of the message;
- presentation of the message; and
- linked content, telephone numbers and contact information contained in the message,
would cause a person to conclude that one of the purposes of the message was to offer or advertise goods or services , or to advertise or promote a supplier or prospective supplier of goods or services.
All ‘commercial electronic messages’ under the Spam Act require:
- the consent of the recipient – consent can be either express (where a person takes an active step to indicate that they consent to receiving commercial messages) or inferred (where there is an existing business or other relationship and the recipient can reasonably expect to receive commercial electronic messages from the sender);
- clear and accurate sender identification – this includes the full name, address and contact details of the sender; and
- a functional unsubscribe facility to opt out of receiving such messages – for instance by a link that creates an automatically addressed email to be sent in reply.
This action against Tiger Airways highlights the importance of a functional unsubscribe facility to enable recipients to opt out of receiving commercial electronic messages. As stated by ACMA Deputy Chairman Richard Bean, this is a reminder to businesses that “they should pay attention to what their customers are saying, test their email unsubscribe facilities regularly, and not simply set and forget them.”