Could your friend-to-friend marketing be inadvertently breaking spam laws?

POSTED: August 9, 2017 BY: CATEGORY:

While email marketing has been around for a number of years now, even in 2017 many organisations still face fines and enforcement action for contravening spam laws. If you want to ensure your organisation isn’t going to fall foul of the Australian Communications and Media Authority (ACMA), there are a few common mistakes you’ll need to avoid making. One big area where marketers are still getting caught out is friend-to-friend marketing.

You may remember a few years ago we saw fast food giant McDonald’s issued a warning for their friend to friend marketing strategy.

The reason behind the warning was that McDonald’s had included a ‘send to friends’ function on their Happy Meal website, which encouraged visitors to the site to send activities and games from the Happy Meal site to their friends via email.  The details of the case suggest that McDonalds set up the system in such a way that friends (receiving information) had not been given an opportunity to express permission for information to be sent and it also appears that emails were sent without an unsubscribe button, not proving friends to opt out of the McDonald’s emails.

So why is this a problem?

Your marketing material is probably not disseminated on quite the same scale as a company like McDonald’s, but it is still worth thinking about the legal implications of whatever you send, particularly when it comes to email marketing. If a huge company like McDonalds, with its team of legal experts can make a mistake like that, anyone can.

Although allowing your subscribers or website visitors to forward information on to their friends may seem like a straightforward and harmless way to promote your business, it can potentially lead to a legal minefield if you are not careful how you go about it.

The idea of viral or friend-to-friend marketing is not new. Social media makes it easy to share content and information with friends and across networks, and it makes a great deal of sense from a marketing perspective to let your current customers do your marketing for you. If they like your product or service, chances are their friends will too, but when you are trying to sell directly using this form of marketing, you need to be very careful.

According to the Spam Act, promotional emails sent by a business must always first obtain the consent of the recipient, and they must provide an unsubscribe function, even where the sender’s name is listed as the name of the friend, rather than the business.

Even if people don’t mind receiving promotional emails from their friends, your business is still responsible for proving that the final recipient consented to receiving it in the first instance. According to the Spam Act,they must give express consent, or consent may be inferred from their conduct and existing business or other relationships”. Without having a direct relationship between the business and the end recipient, this is hard to achieve, and ACMA warns businesses to be extremely cautious about friend-to-friend marketing.

There are a number of things that constitute friend-to-friend marketing – including asking customers to provide you with the email addresses of their friends so that you can send them information, suggesting they forward information, such as competitions or activities, from your business’s website to their friends, and anything else that uses a network of friends to distribute your business’s marketing material.

When you are using friend-to-friend marketing, using the friends email address as the sender rather than your business, or advising customers to only send information on to recipients who might want to receive it, will probably not provide protection against spam laws. The only way to avoid contravening the Spam Act, however unintentionally, is to have clear records proving consent for every email that your customers receive.

Example

The cloud based email marketing program that we use in the Next Marketing business has a ‘forward to friend’ function. Although we can track how many emails have been forwarded using the feature, there is no way for us (Next Marketing) to as certain who the friend actually is. The only way those individuals could be contacted was if they subsequently signed up to receive communications themselves, which, of course, conforms to rules surrounding confirmed opt-in.

Where to from here?

Ultimately, if you are considering a friend-to-friend marketing campaign, it would be worthwhile reading the ACMA website and perhaps considering legal advice as well.

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ABOUT THE AUTHOR

#Jo Macdermott - turning good businesses into great businesses is all in a day’s work for marketing consultant, Jo Macdermott. Jo leads Next Marketing, a multiple award winning business, which she has grown from scratch. Jo is commercial, empathetic and always has her eye on the end game.