Cel­lar­mas­ter Wines must swal­low a $110,000 penal­ty from ACMA

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.