Question 7: Are all commercial electronic messages covered by the Spam Act?

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Question 7: Are all commercial electronic messages covered by the Spam Act?

Answer:

No.

Some 'commercial electronic messages' are exempt from some requirements of the Spam Act.

Specifically, messages from religious organisations, registered charities, political parties and educational institutions are exempt from the requirements to obtain consent or provide a functional unsubscribe mechanism.  They must still tell you who they are and how they can be contacted.

Educational institutions, such as pre-schools, schools, colleges and universities, are only exempt where they send messages to current or former students.

Does the Privacy Act still apply to these 'exempt' messages?

The Privacy Act may still apply to these messages if the sender:

• is an 'organisation' under the Privacy Act and
• is using your 'personal information' to contact you (see How does the Privacy Act apply to commercial electronic messages and spam?)

While the Spam Act does not require that you consent to receiving these 'exempt' messages, or that an unsubscribe option is provided, the organisation must still comply with any requirements it may have under the Privacy Act.  In general, this means that the organisation may only send you these messages if:

• it originally collected your personal information for the purpose of sending such messages - such as where you provide your email address for the purpose of receiving promotional material
• sending the messages is related to why you gave the organisation your contact details, and you are reasonably aware that the organisation would use your personal information for this purpose. Whether or not you would be 'reasonably aware' will usually be determined by what the organisation told you when it first collected your personal information
• you have consented to the organisation using your personal information to send you these messages.

More information

• For more information about spam and the Privacy Act, see Information Sheet 26.
• Information on making complaints about your personal information being used to send spam is available at Who can I complain to about receiving spam?
• Detailed information about the Spam Act is also available from the Australian Communications and Media Authority at www.spam.acma.gov.au.

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