AUSTRALIAN E-MARKETING CODE OF PRACTICE - DEVELOPED BY THIS ACA ENDORSED COMMITTEE Date: December 2004 B SCOPE & DEFINITIONS INDEX A: Foreword B: Scope, Application and Objectives C: Definitions and Abbreviations
RUBAC Electronic Information Management Methodology - Copyright of Hamme Family TrustA: FOREWORD Section 112(1A) of the Telecommunications Act 1997 sets out the intention of the Commonwealth Parliament that bodies or associations that the ACA is satisfied represent sections of the eMarketing industry should develop industry codes that are to apply to participants in the respective sections of the industry in relation to the eMarketing activities of those participants. This Code has been developed by a committee of representatives of peak bodies representing the participants of the eMarketing industry, a number of Message Service Providers, government regulatory agencies and representatives of corporate business. This Code covers industry rules for the sending of commercial electronic messages in compliance with the Spam Act 2003. The Code should be read in conjunction with related legislation, including: A The Spam Act 2003; B The Telecommunications Act 1997; and C The Privacy Act 1988. If there is a conflict between the requirements of this Code and any legislative requirements placed on a member of industry, the industry member will not be in breach of this Code by complying with the legislative requirements. Industry members marketing outside of Australia should be aware of, and take account of, the national laws and codes of practice of the country in which the recipient is resident. The Guidelines and Examples provided in Sections F and G of the Code are a guide to interpretation only and are not binding as Code Rules. It is intended that the Code will be registered with the Australian Communications Authority pursuant to section 117 of the Telecommunications Act 1997. B SCOPE, APPLICATION AND OBJECTIVES 1 Scope 1.1 This Code sets out conditions for sending commercial electronic messages with an Australian Link, including those sent by email, instant messaging and Mobile Wireless Technology (MWT). These messages are referred to throughout the Code as 'Commercial Communications'. 1.2 The Code applies to all persons who undertake or intend to undertake an e-marketing activity as defined in section 109A of the Telecommunications Act 1997. This definition covers the following activities: 1.2.1 Activities where a person uses Commercial Communications to market, advertise or promote goods or services; where (a) the person is the supplier or prospective supplier of the goods or services; and (b) the activity is the sole or principal means of marketing, advertising or promoting the goods or services (See Section F, Guideline 1). 1.2.2 Persons undertaking the activity described in subclause 1.2.1 are taken to be 'Message Originators' for the purposes of this Code. 1.2.3 Activities undertaken by a person under a contract or arrangement (other than a contract of employment) which are: (a) using Commercial Communications to market, advertise or promote goods or services, where the person is not the supplier or prospective supplier of the goods or services; or (b) using Commercial Communications to advertise or promote a supplier or prospective supplier of goods or services, where the person is not the supplier or prospective supplier of the goods or services; or (c) using Commercial Communications to market, advertise or promote land or interests in land, where the person is not the supplier or prospective supplier of the land or interests in land; or (d) using Commercial Communications to advertise or promote a supplier or prospective supplier of land or interests in land, where the person is not the supplier or prospective supplier of the land or interests in land;or (e) using Commercial Communications to market, advertise or promote business opportunities or investment opportunities, where the person is not the provider or prospective provider of the business opportunities or investment opportunities; or (f) using Commercial Communications to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the person is not the provider or prospective provider of the business opportunities or investment opportunities. 1.3 Persons undertaking the activities described in subclauses 1.2.3 (a) - (f) are taken to be 'Message Service Providers' for the purposes of this Code. 1.4 The term 'Use' in respect of Commercial Communications when referenced in this Code, includes to send or cause to be sent (for example by contracting another party to send the Commercial Communication). 1.5 This Code applies to all sections of the eMarketing industry. Section 110A of the Telecommunications Act 1997 states that all of the persons carrying on, or proposing to carry on e-marketing activities constitute the eMarketing industry. 1.6 The following activities are covered by the provisions of this Code and to the extent to which entities engage in these activities, they are bound by the provisions of this Code in respect to these activities: 1.6.1 Activities undertaken by advertising companies who are contracted by a person to market, to advertise or promote the goods or services of that person by sending Commercial Communications or causing them to be sent (for example by engaging a Message Service Provider to send a Commercial Communication developed by the advertising company); 1.6.2 Activities undertaken by Public Relations firms who are contracted by third parties to send Commercial Communications or cause them to be sent to advertise or promote goods or services of a third party; and 1.6.3 Activities undertaken by individuals or Organisations to market, promote or advertise their own goods and services where sending or causing to send Commercial Communications is their sole or principal means of marketing, promoting or advertising their own products or services. 1.7 Registration of this Code by the ACA allows the ACA to enforce the provisions of this Code against all persons undertaking an e-marketing activity regardless of whether they are a signatory to this Code. 1.8 The following activities are not considered to be e-marketing activities and to the extent that entities engage in these activities they are not bound by the provisions of this Code in respect to these activities: 1.8.1 Merely supplying the underlying carriage service or webbased facility for the storage, transmission or delivery of a message where the persons supplying the carriage service, web-based facility or electronic messaging service have no control over the content of any messages stored, transmitted or delivered; 1.8.2 Merely supplying a data storage and management service for storing and managing data such as mailing lists where the persons supplying the service do not send Commercial Communications from the service; and 1.8.3 Activities consisting of using Commercial Communications to market, advertise and promote goods or services, where the person undertaking the activities is the supplier or prospective supplier of the goods and services and the activities are not their sole or principal means of marketing, promoting or advertising their own products or services. 1.9 Persons undertaking the activities referred to in clause 1.8 may utilise the 'best practice' provisions of this Code to supplement their compliance with the provisions of the Spam Act 2003 2 Territorial application 2.1 This Code applies to the activities of Message Service Providers and Message Originators only to the extent their Commercial Communications have an Australian Link. 3 Objectives 3.1 The principle objective of this Code is to ensure that Australian electronic account holders do not receive unsolicited Commercial Communications from the following sources: 1 E-mail; 2 Instant-Messaging; and 3 A Mobile Wireless Technology. 3.2 The Code's objectives are to: 1 provide a plain English application of the provisions of the Spam Act 2003; and 2 promote best practice use of Commercial Communications in compliance with the Spam Act 2003. C DEFINITIONS AND ABBREVIATIONS ACA The Australian Communications Authority - the government regulator of telecommunications and radiocommunications. Australian In respect of Commercial Communications means: Link 1 originating, commissioned or authorised in Australia and sent to any destination; 2 originating, commissioned or authorised overseas and sent to an address accessed in Australia. Charity A Charity or charitable institution is a not-for-profit Organisation with a dominant charitable purpose for the public benefit. Code This Code of Practice Code A body comprised the representatives outlined in Section E Administration of the Code and whose functions are determined by clause 2. Body Commercial The communication of advertising, marketing or promotional Communication material, which is directed to a Recipient via an Electronic Message. Complaint In respect of this Code - a Complaint is an expression of dissatisfaction relating to actions taken by a Message Originator or Message Service Provider under this Code and lodged in writing (including electronically) in accordance with the procedures outlined in this Code. Confirmed A process whereby on receipt of a subscription the Opt-In Message Originator or Message Service Provider acknowledges the subscription by sending an email to the new subscriber. Consent Means: i Express Consent; or ii Inferred Consent. Contact A means which allows the Recipient or Relevant Electronic Mechanism Account Authority to make direct contact with, or obtain information from a Message Originator, or Message Service Provider including, but not limited to a postal address, telephone number, website, email address, WAP site or bookmark, or nominated MWT reply number. Data Provider A person or company that makes Third Party Contact information available to Message Originators or Message Service Providers for the purpose of allowing the Third Party Contact information to be used to send Commercial Communications. A Data Provider may or may not be actively involved in the sending of Commercial Communications. Device The apparatus or hardware on which a Commercial Communication is received by the Recipient for example, computer or mobile phone. Double Opt-In The process whereby the Recipient or Relevant Electronic Account Authority takes an active step to confirm that Express Consent has been given. Educational A pre-school, school, college or university and includes Institution private schools, colleges and universities. Electronic An Electronic Address includes but is not limited to: Address i An email address; ii An Electronic Address in connection with an instant messaging service; iii A telephone number. Electronic A message sent using an internet or other listed carriage Message service to an Electronic Address in connection with: i An email account; ii An instant messaging account; iii A telephone account; iv A similar account; excluding voice telephony and facsimile. Express An active step taken by a Recipient or Relevant Electronic Consent Account Authority to indicate Consent. Factual An electronic communication the purpose of which is to Communication merely notify or inform the Recipient or Relevant Electronic Account Authority and not to influence the Recipient or Relevant Electronic Account Authority in making a purchasing decision about a product or service or to inspire a commercial relationship. Forwarding A mechanism provided on a commercial website or within the body Facility of an Electronic Message that generates a predefined Commercial Communication to be sent/forwarded to another Recipient's Electronic Address specified by a Recipient. Functional An effective facility, which may or may not be automated, Unsubscribe that allows an electronic account holder to withdraw Facility Consent by indicating to the Message Originator or Message Service Provider that such Commercial Communications must not be sent in the future. Government Means: Body i a department of the Commonwealth, a State or a Territory; or ii an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or iii a department of the government of a foreign country; or iv an agency, authority or instrumentality of a foreign country; or v a department of the government of a part of a foreign country; or vi an agency, authority or instrumentality of the government of a part of a foreign country. Inferred Consent that can be reasonably inferred from Consent i the conduct; and ii business relationships; and iii other relationships. of the Recipient or Relevant Electronic Account Authority. Location Based Commercial Communications targeted to a Recipient or Commercial Relevant Electronic Account Authority dependent on their Communications location as determined by technology such as Global Positioning Systems (GPS). Media A Recipient directly involved in the collection, analysis and Representative reporting of public events, information or published content. This includes, but is not limited to, editors, subeditors, journalists, researchers, producers, executive producers, directors, writers and presenters. Message Any individual or Organisation (including sole traders and Authoriser partnerships) that authorises and may also send or cause to be sent Commercial Communications to promote, advertise or offer to supply its own products or services, where the Use of Commercial Communications is NOT the sole or principal means of promoting, advertising or offering to supply its own products or services. Message Authorisers are not bound by the provisions of this Code but are required to comply with the Spam Act 2003. Message Has the meaning given to it in section B, subclause 1.2.2 Originator and includes any individual or Organisation (including sole traders and partnerships) that sends or causes to be sent and authorises the sending of Commercial Communications to promote, advertise or offer to supply its own products or services, where the Use of Commercial Communications is the sole or principal means of promoting, advertising or offering to supply its own products and services. Message Service Has the meaning given to it in section B, subclause 1.2.3 Provider and includes any individual or Organisation (including sole traders and partnerships) which, by contract or other arrangement (other than a contract of employment) sends or causes to be a sent a Commercial Communication on behalf of a Message Originator or Message Authoriser. Mobile Wireless Includes existing and emerging wireless technologies Technology including but not limited to Short Message Service (SMS), (MWT) Multimedia Message Service (MMS), Wireless Access Protocol (WAP) and 3rd Generation technology (3G). It does not include voice calls made to mobile telephones. Organisation Includes sole traders, partnerships and bodies corporate, Government Bodies and unincorporated bodies or associations. Paid A Commercial Communication or series of Commercial Subscription Communications supplied and paid for over a defined period Service of time. Premium Rate A MWT service charged at a premium to the normally Service accepted standard rate for that means of communications. Recipient Any natural person who receives or may receive a Commercial Communication. Recognised A body or association having a membership representing Industry Body Message Originators and/or Message Service Providers that has been accredited by the ACA to investigate Complaints received under the Code. Registered A political party, or a branch or division of a political party, Political that is registered under: Party i the Commonwealth Electoral Act 1918; or ii a law of a State or Territory that deals with electoral matters. Relevant A person or Organisation or who has direct administrative or Electronic financial authority to amend, cancel or suspend: Account Authority i a free account; or ii a pre-paid account; or iii anything that may reasonably be regarded as the equivalent of an account; on their own or on their employees' behalf. Third Party Contact information provided to a Message Originator or Contact Message Service Provider by a third party (being someone other than the Recipient to whom the information relates), including but not limited to, referrals and swapped, rented or purchased lists. Unsolicited Commercial Communications sent to Recipients or Relevant Commercial Electronic Account Authorities without Consent. Communications Unsubscribe A request made by a Recipient or Relevant Electronic Account Authority that a Message Originator or Message Authoriser cease sending Commercial Communications of the nature specified by the Recipient. Use The term 'Use' in respect of Commercial Communications when referenced in this Code, includes to send or cause to be sent (for example by arranging for another party to send the Commercial Communication).