Spam Law : What you need to know

5 April 2026 in Commercial Lawyers | 5 min read | skip to FAQs

This article discusses Spam law, including the definition of Spam, legal protection provided by legislation and the consequences for companies that breach Spam law by sending unsolicited electronic messages as part of their marketing. Telstra is one of the many major companies that have recently faced scrutiny after being investigated for breaching Spam law.

What Constitutes ‘Spam’?

Section 5 of the Spam Act 2003 (Cth) (the Act) defines electronic message to include any message sent using an internet carriage service or other carriage service to an electronic address. This includes to an email account, a telephone account or an instant messaging account. It excludes messages sent via a voice call using a standard telephone service. Section 6 of the Act defines a commercial message as a message with the purpose of offering, advertising or promoting the supply of goods or services.

Designated commercial electronic messages are not considered Spam. This is defined as non-commercial, factual messages and messages received from certain groups, which includes government bodies, registered charities, religious organisations and educational institutions.

The Spam Act prohibits the sending of any unsolicited, commercial electronic messages.

Key Provisions of Spam Laws

Section 16 of the Spam Act prohibits a person (including a company or other organisation) from sending any commercial electronic messages. However, pursuant to Section 17 and 18 of the Act, commercial electronic messages can be sent if they include clear and accurate sender information and an unsubscribe function.

Put simply Spam laws aim to protect consumers from unsolicited commercial electronic messages by requiring the sender to:

1. have the consent of the recipient
2. clearly and accurately include the senders contact details
3. and importantly provide a clear and conspicuous unsubscribe function that must not require the recipient to log in or provide personal information in order to unsubscribe, except where the recipient has agreed to such conditions.

The Act protects consumers from unsolicited commercial messages, including texts, emails, and messaging.

Penalties for violating Spam Law

The Act is governed by the Australian Communications and Media Authority (ACMA). Section 26 of the Spam Act provides that the ACMA may institute proceedings in the Federal Court to recover any pecuniary penalty on behalf of the Commonwealth. Section 24 states that the Court may order such pecuniary penalty as the Court considers appropriate. If a business has been found to have contravened Spam law, and has a prior offence, they may be fined 5,000 penalty units, currently $1.65 million.

Numerous businesses have previously been subjected to investigation by the Australian Communications and Media Authority (ACMA) and found to have breached Spam laws. These companies include,

1. Commonwealth Bank of Australia
2. DoorDash Technologies Australia Pty Ltd
3. Kmart Australia Ltd
4. Kogan Australia Pty Ltd
5. Tyre and Auto Pty Ltd trading as mycar Tyre and Auto
6. Pizza Pan Group Pty Ltd trading as Pizza Hut Australia
7. Ticketek Pty Ltd
8. Sportsbet Pty Ltd
9. Uber Australia Pty Ltd
10. Woolworths Group Limited

The major company most recently under the ACMA spotlight is Telstra Limited.

Background to Telstra violating Spam Laws

Telstra, one of Australia’s leading telecommunications companies, has been penalised $626,000.00 after an investigation by the ACMA found that the company sent out close to 10.5 million text messages in violation of the Act. This breach occurred over a 21-month period from 2022 to 2024. The breach involved the sending of marketing messages to recipients who either had not consented or had withdrawn their consent to receive such correspondence.

The ACMA’s investigation found that Telstra sent over 10.4 million text messages that lacked proper unsubscribe arrangements. A significant portion of these messages, being over 10.3 million, required recipients to provide personal information to opt out, which violates the core principle of the Act. The ACMA also noted that 43,228 texts were sent to customers of Telstra’s ‘Belong’ brand who either had not consented or had previously withdrawn their consent to receive these text messages.

Telstra’s Penalties

The penalty imposed on Telstra is the result of an infringement notice issued by the ACMA. According to Samantha Yorke, an ACMA member, Telstra’s status as an established company means it should have been aware of these requirements and ensured compliance. She stated that “the spam consent rules have been in force for over 20 years, and Telstra, as a mature and established company, has no excuse for this type of non-compliance”. The penalty is the maximum that can be applied for this issue, given the age of the non-compliant messages. In addition to the financial penalty, Telstra has committed to a court enforceable undertaking to prevent future violations.

Remedial Actions

Following the investigation, Telstra self-reported the breaches to the ACMA and took steps to address the underlying issues. Telstra had already implemented fixes to the system that generated the non-compliant messages and will now undergo a comprehensive independent review to ensure that such issues do not continue to occur. Telstra has also agreed to regular reporting to the ACMA, which will help ensure the effectiveness of these remedial measures.

The Significance of Telstra’s Breach of Spam laws

Telstra’s breach of these protections highlights the importance of compliance by all businesses to protect consumers. Consumers who have received unsolicited commercial messages, including spam texts, have the right to lodge complaints with the ACMA.

The ACMA’s new Statement of Expectations provides a useful guideline on complying with Australian Consumer Law to prevent similar issues. The Telstra case also demonstrates the importance of compliance by all businesses with Spam laws and the care that is required when implementing automated commercial electronic messaging systems as part of any marketing strategy.

Key Takeaways

For consumers:

1. Australian consumers are protected by Spam laws, which prevent businesses from sending unsolicited commercial electronic messages.
2. Consumers have the right to unsubscribe from marketing communications from companies and should be provided with a clear and simple method to do so.

For commercial companies:

1. Businesses must ensure that they implement commercial electronic messaging systems with care and in compliance with Spam laws, including seeking consent and providing clear and accurate sender information
2. Commercial electronic messages must include a functional way for consumers to unsubscribe that does not require the provision of personal information or a log in process.
3. In practice, businesses should conduct a routine review of their e-marketing practices to ensure that violations to Australian Consumer Law are avoided.

How can BSM Sydney Lawyer assist you?

The experienced commercial lawyers at Brander Smith McKnight law firm are familiar with all aspects of Spam law and the legal requirements of e-marketing in Australia. Our Sydney lawyers can review your commercial e-marketing practices to ensure that they comply with the requirements of ACMA. We provide meticulous attention to detail and have decades of business and commercial law experience. Our senior commercial lawyers provide a complimentary 20-minute consultation.

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BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.