Source: The Conversation (Au and NZ) – By Tegan Cohen, Postdoctoral Research Fellow and Lecturer, Faculty of Business & Law, Queensland University of Technology
Unwanted, unsolicited marketing emails, texts and instant messages feel like an unavoidable fact of modern life. But there are actually legal restrictions on spamming that apply to every business selling to Australian shoppers.
Clothing company Lululemon Athletica Australia just paid a A$702,900 penalty for infringing those rules when it sent more than 370,000 emails without an unsubscribe option.
This is how you can stop or report persistent marketing spam – and why we need to tighten those rules even further.
What do Australia’s anti-spam rules say?
The rules of the Spam Act are fairly straightforward.
First, the law prohibits a person or business from sending unsolicited commercial “electronic messages”: emails, texts or instant messages. That means a business must have a person’s consent before sending them marketing messages.Second, the Spam Act makes it a rule for any person or business sending a commercial message to include an option to unsubscribe from future messages.
The unsubscribe function has to be clear and work for at least 30 days. And it mustn’t require a person to provide additional personal information, or login or sign up for a user account, to opt out.
The rules apply when the sender or recipient of the message is located in Australia.
However, there are some exceptions. The rules don’t apply to messages from certain kinds of entities: registered charities, educational institutions, government bodies and, most controversially, registered political parties.
Read more: Why are political parties allowed to send spam texts? And how can we make them stop?
How can you report marketing spam?
Anyone who thinks they’ve received a message that doesn’t meet the rules can complain to the regulator, the Australian Communications and Media Authority (ACMA).
Even if you don’t want to make a complaint, you can still report it by:
- forwarding email spam to report@submit.spam.acma.gov.au (do not change the subject line or add any text)
- forwarding SMS or MMS spam to 0429 999 888 (standard message charges apply).
If ACMA finds a business has violated the rules, they can face hefty fines.
Last year, Tabcorp was fined $4 million for non-compliant SMS and WhatsApp messages to its VIP customers.
Telstra also paid a $626,000 penalty for sending more than 10 million text messages that did not comply with Australia’s spam laws.
The year before, the Commonwealth Bank landed a $7.5 million fine for sending millions of marketing messages without people’s consent or a working unsubscribe option. It was the bank’s second major breach of the spam rules, after it was fined $3.55 million in 2023.
Why Lululemon was fined
In its latest case, announced this week, ACMA found Lululemon Athletica Australia failed to provide an unsubscribe option in thousands of messages sent between 1 December 2024 and 5 January 2025. (The company is a local subsidiary of global “athleisure” brand Lululemon, based in Canada.)
As a result, Lululemon here in Australia was fined $702,900. It also agreed to take steps to ensure future compliance, including appointing an independent consultant to review its procedures, training personnel, and reporting on compliance to ACMA.
Which messages are covered by the Spam Act?
Interestingly, Lululemon initially argued its messages were not subject to the anti-spam rules.
The rules only apply to commercial messages: when one of the purposes of the message is to advertise, promote or offer to supply goods or services. This won’t include purely factual communications about a good or service you’ve purchased, such as delivery updates, payment reminders, notices of product faults.
Lululemon pointed out that its messages contained factual information, sent for transactional purposes.
Importantly, however, they also contained links back to Lululemon’s website and social media pages. The links had titles like “shop accessories”. That was enough to trigger the Spam Act rules.
ACMA noted its enforcement action against Lululemon was the fifth in 18 months against a business that “incorrectly treated messages as non-commercial”.
Tighter rules are overdue
The line between factual, marketing and entertainment content is increasingly hard to discern online.
However, as ACMA’s recent actions make clear, the Spam Act is clear on this point. A message may have multiple purposes – but if one is to advertise, promote or offer goods or services, the rules will apply.
Still, the kinds of messages captured by the spam legislation are a mere drop in the ocean of digital advertising we encounter everyday elsewhere online including our social media feeds. Ads are tailored and targeted to each of us in real-time, using vast amounts of data.
Back in 2022, the federal Attorney-General’s department recommended updating Australia’s privacy laws to adapt to modern digital advertising.
If implemented, those changes would give consumers more choices to opt out of the broader range of targeted advertising we see. It would also improve transparency about the use of profiling in advertising, and add restrictions on using sensitive information.
The current Spam Act has been in place since 2003. The online advertising ecosystem has shifted dramatically over the past 20 years.
While ACMA’s recent enforcement actions demonstrate the continued relevance and need for education about anti-spamming laws, updating those laws is now long overdue.
– ref. Sick of spam marketing texts and emails? This is how to stop them – https://theconversation.com/sick-of-spam-marketing-texts-and-emails-this-is-how-to-stop-them-278064
