On 1 December 2009, online retailer Topbuy was issued with a formal warning from the Australian Communications and Media Authority (ACMA) for breaching the Spam Act 2003 (see ACMA’s press release). Following investigations into three commercial electronic messages sent by Topbuy to consumers without their consent, ACMA concluded these messages represented a broader systemic problem. ACMA chief Chris Chapman warned that, “Topbuy and the online retailing industry more generally should consider themselves to be on notice.”
Essentially the investigation found that Topbuy had sent unsolicited emails to people who had either requested to be unsubscribed from Topbuy’s mailing list or to people who had not consented to receive the commercial electronic messages from Topbuy. Topbuy said in its defence that it had obtained the consent of family and friends through a referral campaign. ACMA did not accept this, with Mr Chapman warning that “many businesses try to acquire clients through referrals from family and friends, but this is simply not allowed under the specific opt-in marketing provisions of the Spam Act”. He went on to say that “consent to receive commercial electronic messages can only be given by the relevant electronic account-holder – the person responsible for that account and not by another person. It is just not acceptable”.
As Topbuy had approached ACMA itself in relation to these complaints, ACMA issued only a formal warning. Topbuy escaped a financial penalty which, under the Act, could have been up to $1.1 million per day (for repeat offenders) under the Spam Act 2003.
Nonetheless, ACMA’s warning sends a message to online retailers that when sending commercial electronic messages it pays to ensure the message complies with the Spam Act 2003. As a minimum, any commercial electronic message should be sent with the recipients consent, identify the person/organisation that authorised the sending of the message and contain an unsubscribe option.