Further Refer-A-Friend campaign guidance
ADMA has had several discussions recently with the ACMA, following their decision to give
McDonald's a formal warning last December over a Refer-A-Friend campaign. Our various
conversations have confirmed the validity of our interim advice issued in February.
You may be aware that the ACMA has discussed their position on RAF campaigns in a recent blog.
They have also provided ADMA with some additional perspective on how they see Refer-A Friend
campaigns. This information has been used to complete ADMA's guidance below.
In our discussions, ACMA outlined their view of the scope of a marketer’s involvement in a RAF
campaign. They have emphasised that there is no one single factor that will determine whether a
marketer sent, or caused a message to be sent. Possible scenarios and how they should be
approached are broadly outlined below:
1. At one end of the spectrum, there are campaigns where the marketer sends the actual
message. This would be a campaign where a referring friend fills in the contact details for
their recipient friend, and has little or no other involvement in the sending of the message
(ie. doesn’t control how or when a message is sent). It would include campaigns where the
marketer owns the email or SMS platform used for the campaign.
2. In the middle of the spectrum, there are campaigns where the marketer engages third party
service providers to assist with the campaign. Examples of third party service providers the
ACMA noted include email service providers (technical platform providers), and mailing
houses (delivery service providers). In this scenario, the marketer might not send the
message themselves, but they have clearly caused it to be sent.
3. At the other end of the spectrum, there are campaigns where the marketer does not send
the message, but may still be seen to cause the message to be sent. This is a more complex
scenario, that requires careful consideration of the reputational risks involved in putting too
much of the responsibility for Spam Act compliance on the referring friend.
In such a scenario (described below under 1.a), the referring friend would appear to have the
primary responsibility for complying with all the familiar Spam Act requirements for Proof of
Consent, an Unsubscribe Facility, and Accurate Sender Information, but ACMA suggests that the
marketer also has some responsibilities, and should take these into account because – depending on
circumstances - they may still be considered to have caused the message to be sent.
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ADMA recommends taking the following steps to reduce the risk of breaching the SPAM Act:
1. Sending, authorising and causing an email to be sent
Marketers should ensure that the referring friend clearly understands that they are sending a
message to their friend. At the very least, the send button should be pressed by the referrer.
a. One way of reinforcing this may be to send the email using the referrer’s email
platform (ie. by providing a mailto: link). Make sure the FROM: field in the friend
(recipient) email shows the referrer’s email address, and that pressing reply will populate
the TO: field with the referrer’s email address.
By taking this step, the marketer may not be the sender of the message. However,
ACMA cautions that the marketer may still be seen to have caused the message to be
sent, particularly if the marketer is providing an incentive for the message to be sent,
and composing the content of the message.
Marketers should always ensure that the message satisfies the requirements in steps 2-4.
ACMA has warned that the Act does not define what “cause to be sent” means, and
therefore they urge that marketers err on the side of caution to ensure that Spam Act
obligations are met.
b. Always make sure the referrer has to press the send button themselves.
c. Make sure that the referrer can see all of the content of the email marketing
message before it is sent, and prompt them to include a personal message to their friend
if possible. The less you create the message for the referring friend, the better.
d. Make sure that the content of the email message is in the voice of the referrer,
speaking “friend-to-friend”. For example, the message should state “I thought you would
be interested in this competition”, NOT “*company name+ is offering the chance to win
*description of prize+”.
e. If you think that it could harm your reputation if a friend receives multiple messages
about the same campaign from several friends, you may wish to consider ensuring the
unsubscribe facility applies to you, the marketer, rather than the friend. People are more
likely to complain about the marketer to the ACMA, rather than their friends. The ACMA
is therefore more likely to investigate the marketer as having caused the message to be
sent, rather than the friend who sent the message.
AND
2. Consent
The referrer must have the consent of the friend to send them a marketing communication. This
must be inferred from their existing relationship, or express consent.
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a. To ensure that the referrer confidently demonstrates that they have consent, include a
tick box for the referrer to indicate this.
b. For example, the referrer should be required to tick a box next to a statement such as “I
have the consent of my friend to send them this message from me”.
c. Even better would be a tick box that says “I asked my friend if they wanted this referral
and they agreed to receive it”, which would imply express consent. Express consent is
always preferable to inferred consent.
d. Keep a record of the ticked box and the statement of consent with the record of the
referrer for the campaign.
e. If following 1.a (above), the marketer may not be responsible for having evidence of
consent, but taking the above steps to obtain a record of the consent between the two
friends will reduce any potential risks.
A tick box as described above will present as evidence that the marketer has exercised their
responsibility under the Act to ensure there is tangible evidence of consent. The marketer
should ensure that they have some record to demonstrate that there is valid consent
between the sender and the recipient. Having a record of the consent will mitigate the
potential risk of an investigation finding a lack of consent, but the consent must also be
genuine.
AND
3.
Unsubscribe
A marketing communication must contain a functional unsubscribe facility.
a. In a RAF campaign, the friend must be able to unsubscribe from the referrer (ie. the
sender and person who caused the message to be sent). The ACMA advices that in some
instances, there may be a sender, and a person (marketer) who causes a message to be
sent. Unless you are following 1.a (above), always make sure the unsubscribe facility
applies to the marketer. The legislation is not intended to make people unsubscribe from
their friends, so marketers should make the referrer aware of the fact that an
unsubscribe facility will apply to them, if that is the case. There are obvious reputational
risks associated with having friends unsubscribe from their friends.
b. If the unsubscribe facility applies to the marketer who sent the message, the marketer
must keep a record of any unsubscribe requests from the recipient, and respect that
request until the recipient explicitly or implicitly gives consent in future.
c. Make sure that when the friend (recipient) presses reply, the TO: field is populated with
the appropriate email address for the sender. If you are following 1.a above, this will be
the referring friend. In all other instances, it will be the marketer (because they either
sent the message, or caused the message to be sent).
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d. This unsubscribe facility does not need to be automated, so it could be a message in the
forwarded email that states “please notify the sender of this message if you do not want
to receive further commercial message of this nature in future”. It could also be an email
address or an SMS number that the unsubscribe request can be sent to.
AND
4.
Accurate sender information
A marketing communication must accurately identify who authorised the sending of the message,
and must provide accurate information for how the recipient can contact the sender.
a. Following Item 1.a (above), the sender details to be included are the referring friend’s.
In all other cases it would be the marketer. The ACMA recommends that you include
both, to avoid any risk.
b. If following 1.a (above), make sure that the referring friend must fill out a form field to
populate the email message body with contact details that will remain valid for at least
30 days. This could be their email address or phone number.
c. In all other cases, make sure the contact details included in the message body are the
marketer’s contact details, which must be valid for at least 30 days from the date the
message is sent.
AND
5. Collection of data
The marketer must not use the forwarding facility to collect data about the recipient unless they are
sure that they are conducting this activity in compliance with the Privacy Act. Seek further advice
on compliance with the Privacy Act before collecting any data about the recipient.
This guidance is not legal advice. ADMA encourages all members to seek legal advice if necessary,
prior to engaging in a RAF campaign.
For further information, contact DƵƌƌĂLJ,LJĚĞ, ŝƌĞĐƚŽƌͲŽŵƉůŝĂŶĐĞĂŶĚZĞŐƵůĂƚŽƌLJĨĨĂŝƌƐD
DƵƌƌĂLJ͘,LJĚĞ@adma.com.au
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