Online Dealer Cops Very Well Over Marketing Emails – Could Your Business Break Spam Laws?


Australian communications watchdog, the Australian Communications and Media Authority (ACMA), has been on an investigation lightning for the past 18 months and has reported over $ 2.1 million in violations to spam and telemarketing laws to companies .

One such company is well-known online retailer Kogan, who was recently fined for sending marketing emails that consumers couldn’t easily unsubscribe from.

Australia’s Spam Laws

Before we dive into the details of what Kogan ended up in hot water, let’s first understand the Australian laws that govern spam and telemarketing, and why they exist.

The 1988 Data Protection Act (Cth) and the 2003 Spam Act (Cth) (Spam Act) both apply to direct marketing. However, the spam law is sometimes forgotten. A simple way to contrast the two is: The purpose of the Spam Act is to regulate the sending of electronic messages of a commercial nature, while the Data Protection Act can regulate such activities, but only the use of “personal information” by private individuals Organizations (information that can be used to identify or reasonably determine the identity of an individual).

In the Kogan matter, ACMA’s action included consumer rights under the Spam Act as it imposed obligations on companies that send “commercial” electronic messages to customers (e.g., advertising or promoting a product or service) imposed. These obligations include:

  • Consent of the recipient;
  • accurate sender information; and
  • Provision of a functional function for unsubscribing.

If your company sends marketing emails or messages to customers, it is important that you understand these responsibilities under the spam law.

Kogan’s violation of the Spam Act

After Kogan was investigated by the Australian Competition and Consumers Commission (ACCC) for false or misleading promotional claims in mid-2020, he ran into trouble again, this time for violating the spam law.

Kogan sent over 42 million marketing emails that required recipients to set a password and sign in to a Kogan account in order to log out.

After receiving numerous complaints from recipients of these marketing emails, ACMA brought them to the attention of Kogan and subsequently conducted an investigation. ACMA found that Kogan’s behavior had violated a requirement under the Spam Act that commercial electronic messages must contain a functional unsubscribe feature.

The company has been issued a $ 310,800 breach notice and an extensive three-year legal enforcement obligation.

the central theses

Kogan’s behavior and the recent ACMA investigation are reminding companies to meet their obligations under the Spam Act or face substantial fines of up to $ 1.11 million per day for repeat offenders.

Learn from Kogan’s mistakes and make sure your company does two things:

  1. Always include a functional unsubscribe / unsubscribe option in commercial electronic messages. and
  2. Always ask the question: Can your recipients easily opt out of marketing emails? If the answer is no, review and update your ecommerce practices.