Marketing law update: faxes and spam

The rules regulating fax marketing and unsolicited electronic messages (spam) have been updated.

The Telecommunications (Fax Marketing) Industry Standard 2021 sets out the minimum requirements for sending marketing faxes and applies to all participants in the fax marketing industry. It repeals and replaces the Fax Marketing Industry Standard 2011 from 1 October 2021.

Compliance with the instrument is required by section 128 of the Telecommunications Act and failure to comply may incur civil penalties. Section 139 of the Act requires all agreements for the carrying on of fax marketing activities to contain provisions requiring compliance with the Standard.

Section 8 prohibits a sender from sending, or cause to be sent, a marketing fax during the following times unless the recipient has consented otherwise:
(a) a weekday before 9 am; or
(b) a weekday after 8 pm; or
(c) a Saturday before 9 am; or
(d) a Saturday after 5 pm; or
(e) a Sunday.
(f) on national public holidays, or a holiday on a weekday given in lieu of one of those national public

Information which must be provided within a fax includes:
(a) – the name of the fax advertiser;
(b) – the Australian Business Number (ABN) of the fax advertiser, or equivalent business number
identification if the fax advertiser is a foreign company;
(c) the contact details of the fax advertiser which must include a telephone or fax number suitable for receiving telephone calls or faxes during normal business hours at the location of the fax advertiser, and at least
one of the following: street address; postal or business address, other than a street address; email address;
(d) the destination number that the fax is intended to be sent to;
(e) the details of how the fax recipient can communicate an opt-out message, including:
(i) a statement to the effect that the fax recipient may opt-out of receiving any future faxes from
the fax advertiser by conveying an opt-out message to an opt-out address; and
(ii) an opt-out address to which fax recipients can communicate an opt-out message.

The information required to be included in the fax must be set out in a clear, legible, and conspicuous manner, included on the first page of the fax, and displayed using a minimum 10-point font size.

A sender must make reasonable efforts to ensure it does not send more than 10 faxes in respect of the same fax advertiser, to a particular Australian number in any 24-hour period.

Spam Regulations 2021

The Spam Regulations 2021 (Cth) have imposed new conditions on the functional unsubscribe facility that must be included in commercial electronic messages.

The Regulations:

  • prohibit electronic addresses from requiring the recipient of the commercial electronic message to use a ‘premium service’ to send an unsubscribe message;
  • provide that the use of an electronic address must not cost more to use than the usual cost of using that kind of electronic address, using the same kind of technology that was used to receive the commercial electronic message;
  • provide that the use of the electronic address must not require the recipient of the commercial electronic message to pay a fee or other charge to the sender of the message or a related person, unless the sender is also a carrier or a carriage service provider;
  • provide that the use of the electronic address must not require the recipient of the commercial electronic message to provide personal information (within the meaning of the Privacy Act 1988 (Cth)) other than the electronic address to which the commercial electronic message was sent;
  • provide that the use of the electronic address must not require the recipient of the commercial electronic message to log in to an existing account (or create a new account), with the person who sent or caused the commercial electronic message to be sent, or the individual or organisation who authorised the sending of the commercial electronic message.

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David Jacobson

Author: David Jacobson
Principal, Bright Corporate Law
About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.

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