Archive for February, 2010

Can I email people to ask permission to email them?

February 16th, 2010 by Heather Maloney

I get asked this question quite a lot, or worse, I talk to clients who just presume that it’s okay to send a commercial email without consent on the basis that “If they don’t want to receive my emails, they will un-subscribe”.

The bottom line is that it is illegal accordingly to the Australian Spam Act 2003 to send even one commercial email to one email address where you don’t have the prior consent of the recipient to receive commercial emails from you.

Part of the confusion over this stems from the fact that the anti-spam legislation most commonly discussed on the internet is the American legislation (usually referred to as CAN Spam). The Amercian legislation allows organisations to send unsolicited commercial emails as long as they adhere to 3 basic types of compliance in the areas of: unsubscribe, content and sending behavior.

So, just to be very clear, the Australian Spam Act legislation, which applies to emails of a commercial nature, sent to anyone in Australia or emanating from Australia, does require you to have consent of the recipient prior to the email being sent. There is a concept of ‘inferred’ consent in Australian Spam Act legislation, and there is also a concept of ‘conspicuously published’ email addresses that don’t carry the same requirements for prior consent. If you wish to rely on anything but express consent, it is worth careful investigation to ensure you aren’t breaking the law: further reading on the topic of consent.

A final point is worth making: the onus of proof of having consent is on the sender.

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