The Spam Act prohibits the sending of unsolicited commercial electronic messages - known as spam - with an Australian link. A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.

If a business uses any form of e-marketing, including email, SMS (text message), MMS (image-based text messages) or instant messaging, you must understand and meet the following three key requirements of the Spam Act:

1. Consent - the message must be sent with the recipient's consent. The recipient may give express consent, or under certain circumstances consent may be inferred from their conduct or an existing business or other relationships
2. Identify - the message must contain accurate information about the person or organisation that authorised the sending of the message and how to contact them
3. Unsubscribe - the message must contain a functional 'unsubscribe' facility to allow the recipient to opt out from receiving messages from that source in the future. Unsubscribe requests must be honoured within five working days.

A message does not necessarily have to be sent out to numerous addresses to be considered spam. Under Australian law, a single electronic message can be considered spam.

The supply or use of address harvesting software or harvested email addresses for the purpose of sending spam is prohibited.

What is a commercial electronic message?

The Spam Act defines a commercial electronic message as any electronic message that:

• offers, advertises or promotes the supply of goods, services, land or business or investment opportunities
• advertises or promotes a supplier of goods, services, land or a provider of business or investment opportunities
• assists a person to dishonestly obtain property, commercial advantage or other gain from another person.

The Act classifies an electronic message as ‘commercial' by considering:

• the content of the message
• the way in which the message is presented
• any links, phone numbers or contact information in the message that lead to content that has a commercial purpose - as these may also lead the message to be defined as 'commercial' in nature.

What messages can be sent without consent being obtained?

Certain messages from the following types of organisations:

1. government bodies
2. charities
3. religious organisations
4. registered political parties
5. educational institutions (for messages sent to current and former students).

To be permitted, the message must relate to goods or services supplied by the body that authorised the sending of the message.

Purely factual messages are also permitted.