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On the case - August 2008

My business is registered in the
UK but I am about to set up business in Australia
and I’d like to know what pitfalls might exist once I start to send marketing communications, particularly by email?


You probably should look at both the data protection regulations - the Privacy Act 1988 -and the electronic communications regulations - the Spam Act 2003.


The Australian Privacy Act would have resonance with what you are used to in the UK.  It has a number of principles on data collection, use and disclosure, data quality, data security, openness access and correction, identifiers, anonymity, and transborder data flows.  However, Australia has not been accepted as a “white country” (considered as having adequate data protection) by the European Commission, so depending on the nature of your business there may be some issues to address if you are transferring data to Australia.


The Spam Act also focuses on issues with which you will be familiar; unsolicited email messages must not be sent, messages must include information about who authorised the sending of the message, and must have an unsubscribe.  But it clarifies in some detail that address harvesting is absolutely not allowed, and data collection from third parties must only take place if it is really necessary and I doubt that marketing messages would qualify, so no viral campaigns then.


Australia is a Federal country and states and territories have other legislation which may result in different local interpretations of the Spam Act which might have impact if you are physically setting up business in Australia, as some states may be more restrictive in their approach to electronic marketing than others.


A significant difference occurs, however, where there is an ‘Australian Link’ where it would seem that express consent must be given if the message originates in Australia, the individual or organisation who sent the message is physically present in Australia when the message is sent, or the individual to whom the email is addressed is present in Australia when they access the message.  Travellers are excluded!


If an “Australian Link” cannot be established these rules do not apply, but if the email extension is au, there is obviously an “Australian Link” and if your business is established in Australia then you should plan to use an opt-in when collecting email data.  There is a derogation that might apply if consent can be reasonably inferred due to the nature of the relationship that the individual may have with your organisation.


Don’t you wish you’d paid more attention in those geography classes?


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