Upside.Digital sees a $39,600 downside for breaching the Spam Act

The Australian Communications and Media Authority (ACMA) announced that Australian e-marketing company Upside.Digital has paid a $39,600 infringement notice following an ACMA investigation into breaches of the Spam Act 2003 (the Act). The ACMA has also accepted a court-enforceable undertaking from the business targeted at future compliance.

The ACMA found that Upside.Digital sent and caused to be sent a significant number of marketing emails that did not clearly contain the name and contact details of its clients who authorised the sending of the messages involved. Also, while Upside.Digital had consent to send emails to recipients on its own database, it was unable to demonstrate that consent had been obtained for other emails that it caused to be sent through a third party.

Upside.Digital operates as part of an affiliate marketing chain. Its activities include sending advertising emails on behalf of clients and providing these emails to other third party marketers to send to their own customer databases.

"Every single entity in an e-marketing chain needs to be aware that they are responsible for complying with the requirements of the Act," said the ACMA's acting Chairman, Richard Bean. "Advertisers also need to be able to prove that consent exists for all messages they have authorised, irrespective of who sends them."

The Act requires e-marketing messages to include clear and accurate details of the entity that authorised the message. Typically this is the business whose product or service is being advertised. The authoriser and sender of the message also bears the burden of proof, to establish that consent was obtained.
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