Spam Act fine for social media links

The Australian Communications and Media Authority (ACMA) has recently fined Ticketek Pty Ltd $515,040 for breaches of the Spam Act 2003 (Cth). This fine is smaller than recent Spam Act fines. However, it is notable because in some instances an email that was otherwise factual also happened to contain social media links. Ticketek treated these emails as a ‘service email’ (ie a designated commercial electronic message) that could be sent without the consent of the recipient. The ACMA determined that this was a Spam Act breach because:

• the inclusion of social media links (and other links to content which has a commercial purpose) in an electronic message means the message itself has a commercial purpose; and
• where a message has one (or more) commercial purposes, the Spam Act requirements relating to consent and unsubscribe facilities apply.

The full ACMA investigation can be found here. We explore these points in more detail below.

Why should you care about social media links in email messages?

The Spam Act regulates electronic messages (such as email messages, IM messages and SMS/MMS) with an Australian link. The requirements of the Spam Act differ depending on whether the electronic message is a ‘commercial electronic message’ (often referred to as marketing messages) or a ‘designated commercial electronic message’ (often referred to as service messages). We have outlined the key differences below:

It is important to remember that whether an electronic message has one or more commercial purposes must be determined by having regard to:

• the content of the message (this includes the words on the page and the tone of that language)
• the way in which the message is presented (this includes images and the layout)
• content that can be located using links/telephone number or contact information set out in the message (importantly this includes social media links!)

Importantly, the original purpose of a message may change during development of the message. The original intention may be to send a factual message. But if, during the review and design process, a banner, link or tag line is added that promotes goods or services, the message would then have multiple purposes, one of which is commercial.

Why did Ticketek get fined?

ACMA issued Ticketek with a $515,040 fine (and gave a 3 year enforceable undertaking relating to Ticketek’s Spam Act compliance) after it found the ticket provider sent:

• 41,643 commercial electronic messages without the recipient’s consent; and
• 56,691 commercial electronic messages to recipients who had unsubscribed from receiving those messages more than 5 business days prior.

Amongst other arguments, Ticketek submitted that the consent requirements did not apply to 13,858 of these messages as they actually were DCEMs. Why did they think this? Because the message contained important factual information about events for ticketholders.

Although it was not disputed the messages contained important factual information, the relevant messages ALSO included a banner at the bottom of the email that:

• stated “Stay up-to-date with the latest Ticketek events”
• included a link to Ticketek’s Facebook, X (formally known as Twitter) and Instagram

As the statement, and the content of the social media links, promotes the goods and services offered by Ticketek, Ticketek should have characterised the message as a CEM rather than a DCEM. As stated by the ACMA, the inclusion of social media links (which could be used to access pages that contained promotional content) in an otherwise factual messages means:

“there [are] two purposes to the message, the first being to provide factual information and the second being to promote and advertise goods and services which is commercial in nature”

Key Takeaways

ACMA’s decision drives home four key takeaways:

1. where an electronic message has one or more commercial purposes it will be a CEM. Whether the commercial purpose is primary or incidental to the primary purpose does not matter;
2. always consider the content of ALL links when reviewing an electronic message. If the link has a commercial purpose (for example, a link to a company’s website or social media pages that contain promotional content) the electronic message itself is considered to have a commercial purpose;
3. always consider the contents of banners that are attached to electronic messages (especially if they are applied by default to messages). They may change the characterisation of the message without you realising; and
4. compliance with the Spam Act is a key focus area for the ACMA at the moment, and they are actively investigating complaints and regularly issuing fines when they uncover breaches. If you receive notice of a potential Spam Act compliance issue (either a complaint by a customer or a compliance alert from the ACMA) you need to take it seriously as it may just be the canary in the coal mine!

If you need assistance reviewing your electronic message templates; undertaking a Spam Act compliance audit; reviewing your contracts with consumers or third-party suppliers for Spam Act compliance; running interactive training sessions for your staff or if you need assistance with an ACMA Spam Investigation our team of experts at KWM is here to help.