In Brief

ACMA’s most recent­ly pub­li­cised enforce­ment action, against Cel­lar­mas­ter Wines Pty Ltd (part of the Wool­worths group) acts as a time­ly reminder that every busi­ness must take suf­fi­cient care in man­ag­ing its respon­si­bil­i­ties under the Spam Act 2003 (Act).


Swaab has observed that ACMA has ramped up enforce­ment action in respect of spam com­plaints over the last six months, impos­ing more sanc­tions and high­er penal­ties than in pre­vi­ous periods.

Under the Act it is ille­gal to send, or cause to be sent, unso­licit­ed com­mer­cial elec­tron­ic mes­sages, includ­ing email, instant mes­sag­ing, SMS and MMS (text and image-based mobile phone mes­sag­ing) of a com­mer­cial nature. Cor­po­rate infor­ma­tion or announce­ments that are pure­ly fac­tu­al and that do not mar­ket any prod­ucts or ser­vices are exclud­ed. Mes­sages cov­ered by the Act include prod­uct offers, pro­mo­tions, com­pe­ti­tions, adver­tise­ments and fac­tu­al infor­ma­tion that includes those types of content.

Under the Act, every com­mer­cial mes­sage” that is sent must:

  1. be sent with the recip­i­en­t’s consent;
  2. con­tain accu­rate infor­ma­tion about the per­son or organ­i­sa­tion that autho­rised the send­ing of the mes­sage and how to con­tact them; and
  3. con­tain a clear, obvi­ous and func­tion­al unsub­scribe’ facil­i­ty to allow the recip­i­ent to opt out from receiv­ing mes­sages from that source in the future (and any unsub­scribe requests must be processed with­in five work­ing days of receipt).

Cel­lar­mas­ter Wines was penalised for send­ing mes­sages to cus­tomers who had pre­vi­ous­ly opt­ed-out of receiv­ing mar­ket­ing mes­sages. Some mes­sages were sent with­out an opt-out facil­i­ty. These errors result­ed in a $110,000 infringe­ment notice which was paid by Cel­lar­mas­ters in May 2013.

For more infor­ma­tion about spam, how to deal with an ACMA com­plaint or sup­port with ensur­ing that your busi­ness man­ages its respon­si­bil­i­ties under the Spam Act, con­tact our spe­cial­ist team at Swaab.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Where is my mind? The rise of con­tentious pro­bate pro­ceed­ings sur­round­ing the issue of tes­ta­men­tary capacity

In New South Wales, fam­i­ly pro­vi­sion and con­tentious pro­bate claims under the Suc­ces­sion Act 2006 (NSW) are increas­ing­ly focused on…

Kyle and Jack­ie O: The Work­place Rela­tions Law Perspective

The rela­tion­ship between show­busi­ness duos often comes to an acri­mo­nious end. Mar­tin and Lewis split at the height of their…

The Paper­cut Deci­sion and the Cur­rent Posi­tion on WFH

The FWC’s John­son v Paper­Cut Soft­ware deci­sion has renewed debate about the lim­its of work­ing from home rights. While some have…

In the News

Michael Byrnes appeared on The Quar­ter Hour, a radio indus­try pod­cast host­ed by Wade Kings­ley, to dis­cuss the legal aspects of the Kyle and Jack­ie O split, on 13 March 2026

Michael Byrnes appeared on The Quar­ter Hour, a radio indus­try pod­cast host­ed by Wade Kings­ley, to dis­cuss the legal aspects of the…

McK­night Tonight with Robert McK­night inter­views Michael Byrnes on the legal aspects of the Kyle and Jack­ie O split (from 28:25 to 51:00):

In this in‑depth inter­view, Michael Byrnes, Part­ner and employ­ment law spe­cial­ist, shares prac­ti­cal insights on work­place rela­tions, employ­ment law trends…

Michael Byrnes is quot­ed in the arti­cle, DIY jus­tice: The surge of self-rep­re­sen­ta­tion and its toll on the jus­tice sys­tem”, pub­lished in Lawyers Week­ly on 11 March 2026

Michael Byrnes is quot­ed in the arti­cle, ​“DIY jus­tice: The surge of self-rep­re­sen­ta­tion and its toll on the jus­tice sys­tem”…

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