AUSTRALIAN E-MARKETING CODE OF PRACTICE - DEVELOPED BY THIS ACA ENDORSED COMMITTEE Date: December 2004 D CODE RULES INDEX 1: Factual Communications 2: Sending Commercial Communications 3: Record of Consent 4: Third Party Contacts 5: Hours of Contact for MWT Commercial Communications 6: Viral Marketing and Member-Get-Member Schemes 7: Contact Information in Commercial Communications 8: Paid Subscription Services 9: Location Based Commercial Communications 10: Functional Unsubscribe Facility 11: Sending Age-Sensitive Commercial Communications 12: Complaints HandlingRUBAC Electronic Information Management Methodology - Copyright of Hamme Family Trust 1 Factual Communications 1.1 Factual Communications are not Commercial Communications (See Section G, Example 1). 1.2 Other than purely factual information, a Factual Communication may only include all or any of the following information: 1.2.1 Comment directly related to the factual information; 1.2.2 Name, logo and contact details of the Message Authoriser or Message Originator; 1.2.3 The name and contact details of the author; 1.2.4 The name, logo and contact details of the author's employer (if applicable); 1.2.5 If the author of the Factual Communication is a partner in a partnership - the name, logo and contact details of the partnership; 1.2.6 If the author of the Factual Communication is a director or officer of an Organisation the name, logo and contact details of the Organisation; 1.2.7 If the message is sponsored, the name, logo and contact details of the sponsor; 1.2.8 If desired, a Functional Unsubscribe Facility. 2 Sending Commercial Communications 2.1 Message Originators must ensure they do not send, cause to be sent or authorise the sending of Unsolicited Commercial Communications. 2.2 Message Service Providers must ensure that they do not send or cause Unsolicited Commercial Communications to be sent. 2.3 Message Originators and Message Service Providers may send, authorise the sending or cause the sending of Commercial Communications to Recipients or Relevant Electronic Account Authorities providing that: 2.3.1 the Recipient has provided Express Consent to receive such Commercial Communications (See Section G, Example 2); or 2.3.2 It can be reasonably Inferred through conduct of the Recipient that the Recipient has Consented to receive such Commercial Communications (Inferred Consent); or 2.3.3 It can be reasonably Inferred through the business and other relationships of the Recipient that the Recipient has Consented to receive such Commercial Communications (Inferred Consent); or 2.3.4 the Relevant Electronic Account Authority has provided Express Consent on behalf of the Recipient to receive such Commercial Communications (See Section F, Guideline 2); or 2.3.5 It can be reasonably Inferred through the conduct of the Relevant Electronic Account Authority that they Consent on behalf of the Recipient to receive such Commercial Communications (Inferred Consent). (See Section F, Guideline 2). 2.4 Inferred Consent as provided for in subclause 2.3.2, subclause 2.3.3 or subclause 2.3.5 will be deemed to exist if the Message Originator can show that: 2.4.1 the Recipient or Relevant Electronic Account Authority has an existing and continuing relationship with the Message Originator or Message Authoriser, as an identified: i customer; ii account holder; iii subscriber; iv member; v licensee; vi registered user; vii employee; or viii contractor; and would have a reasonable expectation of receiving such Commercial Communications; or 2.4.2 there is no ongoing relationship however there is the potential for one and by their conduct the Recipient or Relevant Electronic Account Authority has taken an active step to provide their contact information and has not withdrawn Consent within the last two years with the reasonable expectation that they may receive Commercial Communications (See Section F, Guideline 3 & Guideline 4 and Section G, Example 4) ; or 2.4.3 the Recipient's work-related Electronic Address has been conspicuously published in the public domain in circumstances where the job function or position of the Recipient is readily apparent (See Section F, Guideline 5); and a the Commercial Communication is being sent to the Recipient in their business or Organisational capacity; and b the Commercial Communication relates to the business/Organisational functions or duties of the Recipient; and c the Recipient, or Organisation in which the Recipient holds a job or position has not specifically indicated within the publication that they do not wish to receive Commercial Communications (or has not provided notice of its refusal or withdrawal of Consent to Commercial Communications being sent to the Recipient's Electronic Address). 2.5 The process that Message Originators and Message Service Providers employ to gain Consent from the Recipient or Relevant Electronic Account Authority must be clear and transparent (See Section F, Guideline 6). 2.6 Where at any time a Recipient or Relevant Electronic Account Authority has expressly notified the Message Authoriser, Message Originator or Message Service Provider that Consent is withdrawn or denied, the Message Originator or Message Service Provider must not rely on circumstances which might otherwise be considered Inferred Consent to send a Commercial Communication (See Section G, Example 3). 2.7 Clause 2.1 and Clause 2.2 do not apply to Charities, Religious Organisations, Government Bodies and Registered Political Parties when sending Commercial Communications that relate to their own products or services or Commercial Communications sent on behalf of these entities. It also does not apply to Educational Institutions that are contacting the households of current or former students about the institution's own goods and services. 3 Record of Consent 3.1 Where a Complaint has been lodged with the ACA or a Recognised Industry Body in accordance with clause 12, Section D of this Code, the onus is on Message Originators to demonstrate with sufficient evidence that Consent has been obtained (See Section F, Guideline 7). 3.2 In the same circumstance, where Message Service Providers are sending Commercial Communications on behalf of a Message Originator or Message Authoriser, they should be able to nominate the a Message Originator or Message Authoriser who obtained the Consent. 4 Third Party Contacts 4.1 Message Originators must only send or cause to be sent Commercial Communications to Third Party Contacts, including Recipients listed on a swapped, rented or purchased list, where: 4.1.1 all reasonable steps have been taken to confirm that the Data Provider has: a obtained Express or Inferred Consent from the Recipient or Relevant Electronic Account Authority to disclose their details to a third party Message Originator or Message Service Provider (See Section F, Guideline 8); and b obtained Express Consent from the Recipient or Relevant Electronic Account Authority for their details to be used by a third party Message Originator or Message Service Provider to send Commercial Communications. (See Section F, Guideline 8). 4.2 Message Originators and Message Service Providers must provide sufficient information to the Recipient or Relevant Electronic Account Authority so that they know that their details will be disclosed and used by a third party Message Service Provider. 4.3 The Message Originator or Message Service Provider must ensure that Recipients or Relevant Electronic Account Authorities that have, at any time, directly informed the Message Originator, Message Authoriser or Message Service Provider that they have denied or withdrawn Consent are removed from the contact list. 4.4 Clause 4.1 does not apply where the Third Party Contact details have been collected in the manner outlined in subclause 2.4.3 above. 5 Hours of Contact for MWT Commercial Communications 5.1 Message Originators and Message Service Providers must take all reasonable steps to ensure Recipients or Relevant Electronic Account Authorities do not receive MWT Commercial Communications between the hours of 9pm and 8am Monday to Friday and 9pm to 9am on weekends, unless the Recipient or Relevant Electronic Account Authority has expressly invited delivery within these hours or been notified in advance that this will be the case. 5.2 Message Originators and Message Service Providers that directly target Commercial Communications to Recipients resident outside of Australia must take all reasonable steps to ensure Recipients do not receive MWT Commercial Communications between the hours of 9pm and 8am Monday to Friday taking into account the time zone of the State or country into which the message is being sent. 6 Viral Marketing and Member-Get-Member Schemes 6.1 Message Originators and Message Service Providers must ensure that Commercial Communications that include a Forwarding Facility contain a clear recommendation that the Recipient should only forward the Commercial Communication to persons with whom they have a relationship, where that relationship means that person could be said to have Consented to receiving Commercial Communications. 6.2 Where the Commercial Communication is forwarded via the Message Originator's or Message Service Provider's Forwarding Facility, the Message Originator or Message Service Provider must: 6.2.1 ensure that it is made clear to the end Recipient on receipt of the forwarded Commercial Communication, that the communication has been authorised and sent by the initial Recipient who is clearly identified within the communication; 6.2.2 ensure that the end Recipient can easily reply to the initial Recipient who forwarded the message to them; 6.2.3 not collect any data or contact details relating to the end Recipient until such times as the end Recipient personally provides such information to the Message Originator, Message Authoriser or Message Service Provider; 6.2.4 ensure the initial Recipient is made aware of the content of any Commercial Communication generated by the Forwarding Facility that will be included in the message sent to the end Recipient; and 6.2.5 ensure that the forwarded Commercial Communication includes information explaining how the end Recipient can Unsubscribe from receiving further Commercial Communications from the initial Recipient. 6.3 Where an end Recipient's contact details are provided to the Message Originator or Message Service Provider by a third party, such as a customer, the referred details will be considered a Third Party Contact for the purposes of the Code and the Message Originator or Message Service Provider must comply with clause 4 above. 7 Contact Information in Commercial Communications 7.1 Message Originators and Message Service Providers must ensure that any Commercial Communications they send contain the following: 7.1.1 information identifying the Message Originator or Message Authoriser in such a way that they can be easily recognised and contacted by the Recipient. The information must remain valid for 30 days after the Commercial Communication is sent; 7.1.2 details of an appropriate Contact Mechanism that allows the Recipient or Relevant Electronic Account Authority to obtain all the following information relating to the Message Originator or Message Authoriser: a full Organisation name; b registered or legal address (PO Box address is not permitted, a virtual office is not permitted); c ABN; d postal address; e email address or a method to send an Electronic Message (such as a web-based form); f fixed line telephone number; g contact details to which enquires or Complaints should be directed. 7.1.3 Message Originators and Message Service Providers must ensure that the Contact Mechanism provided in subclause 7.1.2 above is provided at low cost and is easy for the Recipient or Relevant Electronic Account Authority to use. 7.1.4 Where use of the Contact Mechanism is charged at a rate that exceeds the standard rate for that Contact Mechanism, the Message Originator must provide the Recipient or Relevant Electronic Account Authority an alternative Contact Mechanism that does not exceed the standard rate for that mechanism. (See Section F, Guideline 9). 8 Paid Subscription Services 8.1 Express Consent of the Recipient or Relevant Electronic Account Authority must be obtained by the Message Originator before supplying Paid Subscription Services. 8.2 The Message Originator must obtain further Express Consent from the Recipient or Relevant Electronic Account Authority prior to supplying additional or separate Paid Subscription Services at a subsequent date. 8.3 Where a Recipient or Relevant Electronic Account Authority Unsubscribes from a Paid Subscription Service in accordance with clause 10, the Message Originator or Message Service Provider must inform the Recipient or Relevant Electronic Account Authority, where applicable: 8.3.1 of the term and nature of the agreement entered into by the Recipient or Relevant Electronic Account Authority; 8.3.2 of the remaining term of the agreement and the Recipient's obligations in relation to the contract, including the remaining amount the Recipient must pay under the existing contract; 8.3.3 whether Unsubscribing to the services amounts to cancellation of the contract and whether payment will still be required; and 8.3.4 whether the Recipient is able to resubscribe once the request to Unsubscribe has been actioned/processed. 8.4 Where a Recipient or Relevant Electronic Account Authority notifies the Message Originator or Message Authoriser that they wish to Unsubscribe from a Paid Subscription Service, the Message Originator or Message Service Provider must provide the Recipient or Relevant Electronic Account Authority an opportunity to confirm their Unsubscribe request subsequent to being provided the information in clause 8.3 above. The Unsubscribe facility must comply with clause 10 9 Location Based Commercial Communications 9.1 Message Originators and Message Service Providers must only send Location Based Commercial Communications to Recipients or Relevant Account Authorities that have given Express Consent to the receipt of such communications in accordance with subclause 2.3.1 or subclause 2.3.4 10 Functional Unsubscribe Facility 10.1 For each Commercial Communication, Message Originators and Message Service Providers must provide an easy-to-use, Functional Unsubscribe Facility (See Section G, Example 5) that: 10.1.1 allows the Recipient or Relevant Electronic Account Authority to opt-out of receiving further Commercial Communications sent from the Message Originator or authorised by the Message Authoriser by, at least, the same Device by which they were contacted; 10.1.2 allows the Unsubscribe message to be sent to the Message Originator or Message Authoriser; and 10.1.3 where necessary, complies with the requirements of Section D, clause 8.3. 10.2 Message Originators and Message Service Providers must clearly state to which products or services the Functional Unsubscribe Facility relates. 10.3 The Functional Unsubscribe Facility provided in clause 10.1 must be provided at low cost and be easy to use by the Recipient or Relevant Electronic Account Authority. 10.4 Where the Unsubscribe message will result in unexpected consequences such as the disconnection of multiple services, the Message Originator or Message Service Provider must state the consequences of Unsubscribing and provide a Contact Mechanism to allow the Recipient or Relevant Electronic Account Authority to obtain further information. The Contact Mechanism provided must comply with the requirements of subclause 7.1.3 and subclause 7.1.4 10.5 Message Originators must ensure that the Functional Unsubscribe Facility remains functional for a period of 30 days after the message has been sent. 10.6 Where the Functional Unsubscribe Facility is charged at a rate that exceeds the standard rate for that Contact Mechanism, the Message Originator must provide the Recipient or Relevant Electronic Account Authority an alternative but equivalent Functional Unsubscribe Facility that does not exceed the standard rate for that Contact Mechanism. The alternative Unsubscribe facility must be clearly indicated at the time of obtaining Consent. 10.7 Message Originators sending Commercial Communications must operate and maintain an effective facility to ensure that Recipients or Relevant Electronic Account Authorities who have Unsubscribed are not sent further Commercial Communications after five days of their request being sent. 10.8 Where an Unsubscribe request is received by a Message Service Provider on behalf of a Message Originator or Message Authoriser, the Message Service Provider must forward the request to the Message Originator or Message Authoriser expeditiously, thereby enabling the Message Originator or Message Authoriser to fulfil its obligations under Schedule 2, clause 6 of the Spam Act 2003 which requires that the withdrawal of Consent takes effect at the end of the period of five business days beginning on the day the Unsubscribe message was sent or delivered. 10.9 Message Originators and Message Service Providers must only use or disclose personal information collected and stored for the purposes of clause 10 to comply with the Recipient's or Relevant Electronic Account Authority's request to Unsubscribe and not for any other purpose unless otherwise indicated by the Recipient or Relevant Electronic Account Authority. 11 Sending Age-Sensitive Commercial Communications 11.1 Where the content of a Commercial Communications seeks to promote or inspire interaction with a product, service or event that is age sensitive, the Message Originator must take reasonable steps to ensure that such content is sent to Recipients who are legally entitled to use or participate in the product service or event (See Section F, Guideline 10).