ACMA warns brands to “get it right” as it cracks down on spam this festive season

adma - Sarla Fernando

Sarla Fernando: “If a consumer is asking to be removed off a list, they mean it.”

The Australian Communications and Media Authority (ACMA) has warned advertisers to stick to the rules this festive season as the industry watchdog prepares to crack down on brands during the end-of-year sales period.

ACMA has issued an industry-wide compliance reminder ahead of the Black Friday and Christmas sales period following a growing number of breaches by brands. 

The warning comes just weeks after Kmart was fined $1.3 million by the industry authority for allegedly sending over 200,000 emails to users who had already unsubscribed from their mailing list.

Commonwealth Bank and DoorDash have also been similarly penalised this year with fines equating to $3.55 million and $2 million respectively for their spam breaches.

However, it was the ACMA’s move to fine Ticketek $500k for repeated spam violations in October, that has left marketers “on high alert”, according to Sarla Fernando, director of regulatory and advocacy at the Association for Data-Driven Marketing and Advertising (ADMA) . 

The decision brought unprecedented attention to the fine line between what ACMA considers to be a commercial electronic message, which is held to the Spam Act, versus a transactional or factual message, that won’t necessarily fall into the same scope of regulation.ACMA’s latest crackdown is a sign of the growing frustration from consumers. 

“Let me preface this with the fact that a number of these penalties come after businesses have been warned, or have been notified previously, that there are people complaining about them sending emails out to people who have not consented to it.

“From the ACMA’s point of view, they might wonder why, despite the Spam Act being around since 2003, companies are still getting it wrong.

“Consumers are getting frustrated, and the amount of complaints that [ACMA] would probably get from consumers would be pushing this as well.” 

While a headline-worthy fine may not reflect the accumulation of warnings a business has received in the lead up to the decision, Fernando also proposed that it doesn’t fully convey the range of consequences likely to be faced once the gavel has fallen.

The fine is only one element of what it costs the business. Once it gets in breach it then has to undergo an enforceable undertaking, which involves training programs, processes, audits, check ins with the ACMA for three years, and usually every year consultants coming in and verifying your processes.

“It’s a very costly affair… I think that’s what needs to be educated a bit more in the market.”

Fernando said the ACMA’s warning is a “timely reminder” to marketers “to ensure that your marketing distribution lists are up to date, that you’ve done regular quality assurance, that you make sure that your unsubscribe mechanisms are working, and that they’re synchronised across all all of your databases.

“And I think it’s really important to understand that if a consumer is asking to be removed off a list, they mean it.”

That being said, she maintained that while most marketers are trying to do the right thing, misinformation is a leading cause of malpractice in Australia, with many being directed to foreign clauses through self-searches, or “Google LLB” as she jokingly termed it. 

In the update, ACMA’s “How To Get It Right” guide puts an emphasis on garnering consent from all individuals who will be sent messaging, having a transparent means to unsubscribe, and regular reviews of processes including holding outsourced providers to standard.

Alongside all of which, Fernando advised, “I used to teach my teams to assume that regulators are on the receiving end of your emails, so you might want to just check it!”

See Also: ACMA reveals SVOD players spent $324 million on Australian programs

Top Image: Sarla Fernando

To Top