Direct marketing – Beware the sting in the tail

Several years ago, Brad Entwistle spoke with Rachel Hadley-Leonard, the Head of Marketing at Solihull School in the UK, about the school’s success with direct marketing (SMC podcast #35). Rachel said that the School decided on a direct mail campaign using a quality flyer when it wanted to get the message out to the local community that it was now co-educational, having been a boys’ school for most of its 450 year history.

‘Direct mail’ is more often sent by email rather than through the post these days. Campaign Monitor’s analysis of billions of emails sent by Australian organisations in 2020 found that emails in the education sector achieved an astonishing open rate of 34.3 percent, well above the overall industry rate of 20.6 percent. It clearly makes sense to market your school’s offering via email.

But to whom can you send your emails? All marketers are keen to get their message out to as many people as possible. It is therefore tempting to harvest email addresses wherever you can find them. However, it’s not as easy as getting those addresses and sending emails to them.

Since 2003, Australia has regulated this practice with the federal Spam Act 2003 and the Spam Regulations 2021. These Regulations took effect on 1 April 2021 and apply to emails sent after that date. The Act and the Regulations set up a scheme for regulating the sending of commercial electronic messages. Generally speaking, the Act:

  1. regulates commercial emails,
  2. prohibits the sending of unsolicited emails,
  3. requires functional unsubscribe facilities to be included in commercial emails, and
  4. prohibits the use of address-harvesting software.

‘Address-harvesting software’ is software used for searching the internet for electronic addresses and collecting, compiling, capturing or otherwise harvesting those addresses.

In the school context, ‘commercial emails’ are emails which, having regard to their content and presentation, appear to be for the purpose of advertising or offering to supply the school’s services.

Schools may send unsolicited commercial emails and/or commercial emails without an unsubscribe facility if:

  1. the school authorises the sending of the message, and
  2. either or both of the following applies:
  • the individual responsible for the email account to which the email is sent is, or has been, enrolled as a student in that school,
  • a member or former member of the household of the individual responsible for the email account to which the email is sent is, or has been, enrolled as a student in that school, and
  1. the message relates to goods or services, and
  2. the school is the supplier or prospective supplier of the goods or services concerned.

The email must only contain factual information, with or without directly related comment, as well as the following:

  1. the name, logo and contact details of the school,
  2. the name and contact details of the email’s author, and
  3. accurate information about how the recipient can readily contact the school and this information must be reasonably likely to be valid for at least 30 days after the email is sent.

If the school wants to send commercial emails to recipients who are not current students or their families, it must first have the recipient’s consent. Further, assuming such consent exists, the emails must include a statement to the effect that the recipient may use an email address set out in the message to send an unsubscribe message to the school. That statement must be presented in a clear and conspicuous manner.

The Spam Act provides for penalties for breaches of its provisions. A single breach (for one email) by a body corporate can lead to a fine of up to $22,200, with a maximum fine for multiple contraventions (for multiple emails in one day) of $444,000. Subsequent breaches for repeat offenders attract even higher fines. The maximum penalty for a body corporate with a prior record is $2,220,000 for multiple breaches on one day! In addition, the Federal Court may order the payment of compensation to a victim of a contravention of a provision, and the payment to the Commonwealth of an amount up to the amount of any financial benefit that is attributable to a contravention of a provision. The Australian Communications and Media Authority (ACMA) enforces the Spam Act. ACMA may issue a formal warning, an infringement notice, or choose to initiate a full court proceeding. There are financial penalties that can come with the breach of the Act.

Keep those emails flowing but know the rules and stick to them!

David Ford is a Partner of Carroll & O’Dea Lawyers (formerly of Emil Ford Lawyers), known for his expertise in education law. With over 30 years’ experience advising Australian educational institutions, he also advises school boards on governance and conducts workplace investigations for schools.

SMJ David Ford

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