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Australia – ACMA Finds Grays And Minardi In Breach Of The Spam Act.

25 October, 2013

 

Legal News & Analysis – Asia Pacific – Australia – TMT

 

Grays (NSW) Pty Limited (Grays), responsible for the Australian GraysOnline shopping websites, has paid a record $165,000 fine after sending marketing emails that did not comply with the Spam Act 2003 (Cth) (Spam Act).


The Spam Act prohibits organisations from sending commercial electronic communications (such as email and SMS) for the purpose of advertising or promoting goods or services unless it has the express or inferred consent of the recipient. Such communications must also include opt-out functionality.


ACMA issued Grays an infringement notice for sending emails introducing its new GraysEscape website without opt-out functionality (and to some people who had previously withdrawn their consent to receiving promotional material). An experienced Grays e-marketer had decided the purpose of the emails was not promotional, and hence did not include opt-out functionality.


ACMA has also recently issued a fine of $15,500 to Minardi Pty Ltd (Minardi) which owns Melbourne nightclub Brown Alley. The fine was in response to a formal investigation which found Minardi had committed more than 50,000 breaches of the Spam Act by sending promotional SMS messages without including opt-out functionality or Minardi’s contact details.


These cases demonstrate the significant financial and reputational consequences that can arise where an organisation decides that an electronic communication does not need to comply with the Spam Act.


Entities should also be mindful of their obligations under other relevant legislation such as the Privacy Act 1988 (Cth (Privacy Act). From 12 March 2014, new Australian Privacy Principle 7 will address the use and disclosure of personal information for direct marketing as a discrete privacy principle, rather than as an exception as is currently the case. From this date the Information Commissioner will also have enhanced powers, including the ability to seek civil penalties of $1.7 million for bodies corporate and $340,000 for individuals for each serious or repeated breach of privacy.


View the ACMA’s media release here.


Information regarding the forthcoming changes to the Privacy Act is available on the Office of the Australian Information Commissioner’s website here.

 

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For further information, please contact:

 

Gordon Hughes, Partner, Ashurst
gordon.hughes@ashurst.com

 

Ashurst TMT Practice Profile in Australia

 

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