AUSTRALIAN E-MARKETING CODE OF PRACTICE - DEVELOPED BY THIS ACA ENDORSED COMMITTEE Date: December 2004 F GUIDELINES INDEX Guideline 1: Principal Means of Marketing, Promoting or Advertising Guideline 2: Relevant Electronic Account Authority Guideline 3: Inferred Consent and Pre-ticked Boxes Guideline 4: Inferred Consent and the Media Guideline 5: Conspicuous Publication and Public Relations Contacts Guideline 6: Ensuring the Process of Gaining Consent is Clear and Transparent Guideline 7: Record of Consent Guideline 8: Confirmation of Consent - Third Party Contacts Guideline 9: Standard Rate Guideline 10: Age Sensitive Content Guideline 11: Identification of Complaints Guideline 12: Complaints Handling Systems Guideline 13: Records of Complaints
RUBAC Electronic Information Management Methodology - Copyright of Hamme Family TrustGuideline 1: Principal Means of Marketing, Promoting or Advertising (See Section B, subclause 1.2.1) In determining whether sending or causing Commercial Communications to be sent is their 'principal' means of marketing, promoting or advertising their own goods or services, Message Originators should have regard to: 1 whether eMarketing is their first means of marketing, advertising or promoting in order of importance; or 2 the chief, main or leading means of marketing, advertising or promoting. The projected customer reach of eMarketing campaigns compared to other forms of marketing employed is an important indicator in this regard. The ACA has issued a policy statement outlining its interpretation of subsection 109A(3)(c) of the Telecommunications Act 1997 which deals with the concept of an entity's sole or principal means of marketing. The policy statement is available at www.spam.aca.gov.au/ (actual link to be provided on Code's registration). Guideline 2: Relevant Electronic Account Authority (See Section D, subclause 2.3.4 & subclause 2.3.5) Relevant Electronic Account Authorities are permitted to provide and withdraw Consent on behalf of the Recipients within the Organisation to whom the account relates. In instances where Consent is provided by an Organisation on behalf of its employees or members, the Message Originator, prior to relying on such Consent, should take all necessary steps to validate that the Consent has been given by an appropriate authority in the Organisation. Despite a Relevant Electronic Account Authority in the Organisation providing Consent on behalf its employees or members, a Recipient may withdraw Consent at any time by notifying the Message Originator or Message Authoriser. The Message Originator must interpret this as overriding any previous Consent provided by the Relevant Electronic Account Authority in the Organisation. Where an Organisation withdraws Consent for its employees or members, the Message Originator should interpret the withdrawal of Consent as overriding any previous Consent given by a person within the Organisation. Guideline 3: Inferred Consent and Pre-ticked Boxes (See Section D, subclause 2.4.2) A pre-ticked box in isolation should not be relied upon as indicating that Inferred Consent has been obtained. Information accompanying the pre-ticked box may satisfy the requirements for Inferred Consent outlined in subclause 2.4.2, section D providing that a reasonable expectation has been created. Guideline 4: Inferred Consent and the Media (See Section D, subclause 2.4.2 Inferred Consent of a Media Representative to receive Commercial Communications from a public relations firm can be assumed where: 1 The Media Representative has produced content of a similar topic and nature to the content of the Commercial Communication they are being sent; or 2 The Media Representative has, within the past two years, engaged in correspondence specifically about relevant products or services with the public relations firm - not including requests to Unsubscribe from further Commercial Communications; or 3 The Media Representative has, within the past two years, engaged in correspondence specifically about relevant products or services with a client the public relations firm currently represents - not including requests to Unsubscribe from further Commercial Communications. Guideline 5: Conspicuous Publication and Public Relations Contacts (See Section D, subclause 2.4.2 Many Media Representatives' email contact details can be found in hard-copy and electronic published media contact guides. They can also be found attached to the content they produce, for example in rolling credits at the end of television programs, in newspaper and magazines or on publishers' websites. These contact details are taken to be conspicuously published. Guideline 6: Ensuring the Process of Gaining Consent is Clear and Transparent (See Section D, clause 2.5) The process of gaining Consent will be considered clear and transparent where, after Express or Inferred Consent has been given by the Recipient or Relevant Electronic Account Authority, both the Message Originator and the Recipient or Relevant Electronic Account Authority share a common expectation regarding the Commercial Communications that will be sent and received. In order to ensure clarity and transparency, the Message Originator or Message Service Provider may be required to verify the Consent provided by the the Recipient or Relevant Electronic Account Authority. For example, Inferred Consent may be confirmed by reminding the Recipient or Relevant Electronic Account Authority of the basis for Inferred Consent within the first communication sent. Confirmed Opt-In or Double Opt-In are examples of confirming Express Consent. For example, where a Recipient subscribes to a service online the following Confirmed Opt-In approach may be adopted: 1 on receipt of a subscription the Message Originator or Message Service Provider acknowledges the subscription by sending an email to the new subscriber confirming the subscription. 2 Alternatively, the following Double Opt-In procedure may be adopted: on receiving the subscription request the Message Originator or Message Service Provider may acknowledge receipt by sending an acknowledgment email to the new subscriber. Within the acknowledgment email the Recipient is directed to confirm their subscription request by clicking on a link or responding to the email. The Message Originator should be able to demonstrate that all necessary steps have been taken to confirm that Consent has been given by the Recipient or Relevant Electronic Account Authority. The Message Originator or Message Service Provider will need to make a judgment as to what steps are necessary. With regard to Paid Subscription Services (See Section D, clause 8), Consent is considered confirmed where a Recipient or Relevant Electronic Account Authority pays for the services prior to supply. Where there is an intention to invoice the Recipient or Relevant Electronic Account Authority at a later date for subscription services supplied, the Message Originator or Message Service Provider should confirm Consent has been given prior to supply. Guideline 7: Record of Consent (See Section D, clause 3.1) Message Originators should endeavour to keep records that provide sufficient evidence to show that Consent was obtained from Recipient or Relevant Electronic Account Authorities should they be required to demonstrate compliance with the Code. Organisations will need to consider the extent to which and the type of records that are kept. The depth of detail contained in the records will increase with the importance and reliance parties place on the service in question. The following are examples of the type of information that could be recorded : 1 The type of Consent that was obtained (for example, Inferred or Express); 2 The method by which it was obtained (for example, online registration, supplied business card); 3 The date when Consent was obtained; and 4 Where Consent is Inferred, it may be prudent to document details of inference; 5 Examples of the process through which Consent was obtained or Inferred. (For example,a sample or print out of the web from which Express Consent was obtained or to which Inferred Consent relates.) An example of where the type and date of Consent will be relevant is where a Recipient, who has previously Consented through conspicuous publication, removes Inferred Consent by placing a notice next to the address conspicuously published. As this will not act retrospectively it is important that a Message Originator or Message Service Provider can demonstrate that they obtained Inferred Consent prior to the placing of the notice that indicates Consent being withdrawn. Where a Message Service Provider sends Commercial Communications on behalf of a Message Authoriser, the Message Service Provider should take appropriate steps to ensure that the records they are keeping are compliant with the Code as defined above. Guideline 8: Confirmation of Consent - Third Party Contacts (See Section D, clause 4) When using Third Party Contacts, Message Originators and Message Service Providers are advised to keep records of the steps they have taken to verify that Consent of Third Party Contacts has been obtained by the Data Provider. One of the steps that may be taken could include entering into a contract with the Data Provider under which the Data Provider undertakes only to supply data of Recipients that have given Consent for their data to be disclosed and used by third parties. The Message Originator or Message Service Provider will need to make a judgment as to what steps are necessary in the circumstances taking in to account, for example, the relationship held with the Data Provider. For example, 1 if an established relationship of trust exists between the Data Provider and the Message Originator or Message Service Provider; or 2 the Data Provider and the Message Originator or Message Service Provider form part of the same corporate group; the Message Originator or Message Service Provider may consider it reasonable to rely on the actions of the Data Provider to verify that Consent of Third Party Contacts has been obtained. Guideline 9: Standard Rate ( See Section D, subclause 7.1.4) Standard rate for the purposes of this Code means that the cost of communication must not exceed: 1 Postage: the price of a postage stamp of the type used for sending a standard letter within Australia; 2 Voice telephony: the rate the Recipient would usually pay for a local or national call; 3 Text telephony: the price the Recipient would usually pay to send a standard non-Premium Rate Service text message. Guideline 10: Age Sensitive Content (See Section D, clause 11.1) Examples of age sensitive content might be: 1 An invitation to participate in a competition promoting alcoholic beverages; 2 Invitations to events that are held are establishments where the minimum age of entry is 18; 3 Invitations to participate in driving events; 4 Messages containing pornographic content. The degree to which a Message Originator may need to prevent Recipients receiving age sensitive content will vary dependant on the level of offence that may result. If delivering age sensitive material, the following are examples of some steps that the Message Originator may wish to take to ensure inappropriate content is not delivered: 1 Ensure that Recipients whose known age is below that appropriate for the content that is being delivered are deleted from the list; 2 There should be a clear and transparent statement at the top of the Commercial Communication or in the subject heading defining the appropriate age for viewing the content (for example, "this email is intended for Recipients OVER the age of 18"); 3 If the message directs users to a web site containing age sensitive content, create a jump page preceding the content that asks users for their date of birth which is required to be validated prior allowing entry to the site. If the content directs the Recipient to enter a competition, ensure that age verification is done prior to acceptance of the competition entry. Guideline 11: Identification of Complaints (See Section D, clause 12.1) A Complaint is defined by the Code as '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) by an identified Recipient or Relevant Account Authority in accordance with the procedures outlined in this Code'. Electronic communications such as email are considered 'in writing' for the purposes of the Code. In the instance that a complainant is genuinely unable to submit a Complaint in writing, the Message Originator or Message Service Provider should take all reasonable steps to assist the complainant in lodging a Complaint. For example, the Message Originator or Message Service Provider may transcribe the Complaint into writing and ask the complainant to sign a copy to formalise the Complaint. Guideline 12: Complaints Handling Systems (See Section D, clause 12.2) Message Originators and Message Service Providers internal Complaints handling systems may take account of and aim to comply with Australian Standard® - Complaints Handling 4269 - 1995. Guideline 13: Records of Complaints (See Section D, clause 12.5) Records of Complaints may be kept in manual or electronic form. The requirements outlined in subclause 12.5.1 and subclause 12.5.2 can be satisfied by retaining a copy of the written Complaint submitted by the complainant.