So what is spam? Not a delicious foodstuff sold by Hormel Foods but, as defined by the Act, “unsolicited commercial electronic messages.”

The first thing to note is that it's not just email that's captured by the Act. The definition of ‘Electronic messages’ as enshrined in this new legislation encompasses emails, instant messaging, SMS text messages, multimedia message services and other mobile phone messaging (not including voice or, sadly, fax).

In order to be considered spam the electronic message must also be commercial in nature – for instance marketing or promoting goods, services or land, or directing the recipient to a location where a commercial transaction can take place (such as a website).

A nasty little caveat for non-profits, NGOs, schools, clubs and the like: providing a hyperlink to a company web page in the signature of an otherwise non-commercial email may make it commercial, if the web page markets or promotes goods, services, land, a business or an investment opportunity. In other words, if you’ve managed to find a parent whose business has agreed to sponsor that PTA email newsletter, you may have just turned your school into a criminal communicator!

There are many commercial electronic messages that can be sent legitimately. They are only spam if they are sent without the consent of the recipient – as unsolicited messages.

Specifically, the Act states that the following common messages between organisations and clients/customers are not considered commercial electronic messages:

• Responses to a request for a quote or estimate.
• Messages that facilitate, complete or confirm a commercial transaction that the recipient previously agreed to.
• Warranty information, product recalls and safety and security information about goods or services used or purchased by the recipient.
• Factual information about a subscription, membership, account, loan or similar ongoing relationship.
• Information directly related to employment or a related benefit plan in which the recipient is currently involved.
• Messages delivering goods and services, including product or upgrades, that the recipient is entitled to receive under the terms of a previous transaction.

By the way: a single message may be spam. The message doesn’t need to be sent in bulk, or received in bulk. So don’t even think about sending those messages out one at a time – you’re still busted.

Even if you have consent
In addition to prohibiting spam, the Unsolicited Electronic Messages Act 2007 lays out rules for sending out those commercial electronic messages that do have consent. The message must contain:

• Accurate information about the sender of the message, including how they can be contacted – in other words, Signature Files are suddenly compulsory!
• A functional way for the recipients to indicate that they do not wish to receive such messages in the future – that they wish to unsubscribe.

Taking your medicine
The Act specifies a number of options that are available to enforce the legislation, depending on the circumstances. The range of possible activities includes formal warnings, infringement notices and court actions.