The Spam Act and Law Firm Newsletters: Consent, Identify, Unsubscribe

The three rules

The ACMA's guidance on avoiding spam sets out what businesses must do when sending commercial electronic messages such as marketing emails and texts ^[1]:

1. Consent. "You must first have consent from the person who will receive them."
2. Identify. Messages must "accurately identify your name or business name" and "include correct contact details for you or your business".
3. Unsubscribe. "You need to make it easy for people to unsubscribe from your electronic mailing lists", and an unsubscribe request must be honoured within 5 working days.

Is a legal update a commercial message?

A newsletter that promotes the firm's services is commercial. A legal update that explains a change in the law, with a note that the firm can help, generally has a commercial purpose too, because it promotes the firm's expertise. The safe assumption for a firm newsletter is that the Spam Act applies.

Messages that are purely about a client's current matter, such as an update on progress or a request for documents, are a different kind of communication and are not marketing. Keep the two separate: do not slip a promotional newsletter into the matter correspondence list.

Getting consent on the website

A newsletter sign-up on your website is the cleanest way to get express consent. Good practice:

• A separate sign-up form or a separate, unticked checkbox, not a box that is ticked by default
• A sentence saying what people will receive and roughly how often
• A link to the privacy policy
• A record of when and how each person signed up

Do not add enquiry form submissions to the newsletter list unless the person separately asked to join it. Someone who wrote to ask about a family law matter has consented to a reply, not to monthly updates.

Inferred consent and existing clients

The ACMA explains that inferred consent may apply where someone has knowingly given their address and would reasonably expect marketing from your business, describing this as "a provable, ongoing relationship with your business". It also says inferred consent "is not as reliable as getting someone's express consent" ^[1]. For a law firm, a simple approach is to ask clients at engagement or at the end of a matter whether they would like to receive the firm's updates, and record the answer.

Identifying the sender

Every message should show the firm's name and contact details, usually in the footer. If you use a mailing service, set the sender name to the firm, not the platform, and use a firm email address as the reply-to.

Unsubscribe that works

• A clear unsubscribe link in every message
• No login or password needed to unsubscribe
• Requests processed automatically, well within the five working days the ACMA specifies ^[1]
• Unsubscribed addresses kept on a suppression list so they are not re-added by a later import

Enforcement

The ACMA investigates and enforces the Spam Act and publishes its investigation reports. In one, it found the Commonwealth Bank had contravened the consent rule on up to 34,859,742 occasions and the unsubscribe rule on up to 170,678,086 occasions between November 2022 and April 2024, after the bank had classified many marketing messages as service or compliance messages ^[2]. The lesson for a firm is the classification point: a message does not escape the rules because you call it an update.

Privacy and the mailing list

A newsletter list is personal information. If the Privacy Act applies to your firm, the APPs cover how you collect, use and protect it, and APP 8 matters if your mailing service stores data overseas ^[3]. Many mailing platforms store data outside Australia; your privacy policy should say so if yours does.

Content of the newsletter itself

Newsletters are advertising for the firm, so Rule 36 applies to what they say: nothing false, misleading or deceptive, and no "accredited specialist" wording unless accurate ^[4]. A legal update that explains a change clearly and accurately is good marketing and good practice at the same time.

Writing updates people want to receive

The rules decide who you may email; quality decides whether they keep reading. A few habits help:

• One topic per update. A short note on a single change in the law, with what it means for the reader, is easier to read than a digest of six items.
• Plain subject lines. Say what the update is about. Subject lines written to provoke curiosity can read as spam, and they sit awkwardly with a profession that trades on precision.
• Dates and jurisdictions. Say which state the update applies to and when the change takes effect, so a reader in another state does not act on it by mistake.
• A route back to the website. Link to a page on your site with the fuller explanation rather than putting everything in the email, which also keeps the email light for phones.
• A sensible rhythm. Monthly or quarterly suits many firms. Sending only when there is something worth saying respects readers' time.

Checklist before the first send

1. Every address on the list has a record of consent.
2. The sign-up form has an unticked checkbox and says what people will receive.
3. Messages show the firm name and contact details.
4. Every message has a working unsubscribe link.
5. Unsubscribes are processed automatically and suppressed permanently.
6. The privacy policy mentions the mailing service and any overseas storage.