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ACMA Cracks Down on SMS Marketing
12 November 2012
Sydney-based Swaab has warned clients of new requirements for short message service (SMS) marketing through its Tech Alert newsletter.
According to partner Matthew Hall, the laws surrounding SMS marketing “are the same as apply to email marketing and spam, and apply even if you are simply sending an SMS reminder for an appointment to your client.” Hall notes that the fines for not complying are real, and are potentially crippling to most businesses. Companies breaching the Spam Act 2003 are liable for penalties up to A$1.1 million per day (US$883,000).
Hall says the Australian Communications and Media Authority (ACMA) has recently engaged in two crackdowns on SMS marketing, fining Optus A$220,000 for allegedly sending SMS messages to its customers without including the required sender identification, and commencing proceedings against three companies for sending (or causing the sending of) unsolicited SMS messages to Australian mobile telephone numbers.
“This is the first time ACMA has brought proceedings for a breach of the SMS provisions of the Spam Act 2003,” says Hall. “In previous Federal Court litigation, a company breached the Spam Act 2003 by sending unsolicited emails and using harvested address lists. That company was ordered to pay a fine of A$4.5 million, and the individual concerned was ordered to personally pay A$1 million.”
Hall says companies can avoid trouble with SMS marketing by ensuring they have the specific consent of the recipient to receive SMS messages; use clear and accurate sender identification (not just the sender’s phone number); and have a functional ‘unsubscribe’ facility to opt out of receiving SMS, which must be attached to every SMS message sent,and requests to unsubscribe must occur within the prescribed timeframe.
