ACMA further raises the Spam Act stakes

3 minute read  27.10.2023 Jaimie Wolbers

ACMA has issued another significant fine (this time against Ticketek) for Spam Act breaches in the context of a largely 'factual' email.


Key takeouts


  • Consent for the purposes of the Spam Act may be express, or may be reasonably inferred from the conduct and the business or other relationships between the sender and receiver of the message.
  • ACMA concluded one purpose for sending the emails was marketing –though the overriding purpose may have been to provide factual information to ticket holders. Where at least one purpose involves promoting goods or services, compliance with the Spam Act is required.
  • Organisations should review existing 'factual' electronic communications to ensure compliancewith the Spam Act, and undertake regular reviews to ensure their unsubscribe mechanism is functional and unsubscribe requests are actioned within five days.

Ticketek has recently incurred civil penalties of more than $500,000 and entered detailed enforceable undertakings with the Australian Communications and Media Authority (ACMA) in connection with a number of breaches of the Spam Act 2003 (Cth) (Spam Act).

ACMA's latest determination comes on the back of a string of significant fines, totalling in the millions, issued to organisations over the past 18 months for breaches of the Spam Act. These include fines issued against CBA, DoorDash, MyCar Tyre & Auto, amongst others. The Ticketek enforcement action once again indicates that Spam Act compliance is a key priority area for ACMA.

Background to ACMA's Spam Act determination

The penalties issued to Ticketek relate to conduct that occurred between 1 February to 18 October 2022, whereby a number of individuals received SMSs and emails from Ticketek either without their consent or in circumstances where the recipients had attempted to unsubscribe from receiving marketing communications.

Amongst other matters, the Spam Act prohibits a person from sending a commercial electronic message except in certain limited circumstances. These exceptions include where the individual has consented to receiving the message, or the message is a 'designated commercial electronic message' (as defined in Schedule 1 of the Spam Act) (a DCEM).

One type of DCEM is a message that consists of no more than factual information and any of the following additional information

  • the name, logo and contact details of the individual or organisation who sent or authorised the sending of the message;
  • the name and contact details of the author; and
  • information required by the Spam Act, including accurate sender information and a functional unsubscribe facility.

ACMA regularly takes enforcement action against organisations who send commercial electronic messages to individuals who have not consented to receiving them, or who have unsubscribed from receiving such messages, and expects that organisations should comply with a law that has now been in force for more than 20 years. However, the interesting aspect of this matter was ACMA's finding that the following types of messages were commercial electronic messages (and not exempt as DCEMs), outlined on ACMA's Investigation report, infringement notice and enforceable undertaking: Ticketek Pty Ltd – October 2023.

Ticketek argued that such messages were DCEMs, as they merely conveyed factual information about events to which the relevant individuals had purchased tickets.

However, ACMA formed the view that providing event information was only one of the purposes of the messages. ACMA considered that Ticketek's use of the banner at the bottom of the email, which included a call to action to "Stay up-to-date with the latest Ticketek events" as well as links to the social media accounts, was sufficient to constitute a secondary purpose, which was to promote Ticketek's goods and services.

Ticketek did not advance any evidence that any other exception (specifically, that they had the consent of the recipient) applied. On this basis, ACMA found that Ticketek had breached the Spam Act.

Unfortunately, it is not clear from the Investigation Report whether use of a similar banner but without the call to action would have had led ACMA to reach the same conclusion.

Lessons for organisations

Given the ubiquity of banners such as the one used by Ticketek in electronic communications that are sent regularly by organisations across Australia, ACMA's decision is likely to raise concerns as to whether other organisations may contravene the Spam Act if they include a call to action, or links to their social media accounts, as part of a communication that is otherwise factual (for example, in connection with the sending of an electronic receipt to a customer, or providing an update regarding a service call or other business as usual event).

As we head into the Black Friday and Christmas sales, organisations should consider reviewing their template communications (even 'factual' communications), including the overall impression they give to customers, particularly when sent to those who have specifically opted out (or who have never opted in) to receiving electronic marketing communications. It may be necessary to implement different electronic communication formats for different customer cohorts.

The decision also serves as a timely reminder to ensure that marketing distribution lists are up-to-date, that regular quality assurance is carried out to ensure that unsubscribe mechanisms are working as intended, and that recipients of electronic marketing communications have provided their express or inferred consent to receive those communications from your organisation.

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