The undertaking follows an ACMA investigation into complaints alleging that the airline continued to send commercial email despite multiple attempts by recipients to unsubscribe from its mailing list. The Act, as noted in past posts on this blogs, requires commercial email to include a functional unsubscribe facility. Undertakings have been received in the past by enterprises such as Virgin Mobile (Australia) Pty Ltd, Commonwealth Securities Ltd and Vodafone Hutchison Australia Pty Ltd. They are a gentler regulatory mechanism than the penalties imposed by the Federal Court under the Spam Act, eg the $22 million penalties noted in December and August last year over egregious misbehaviour.
The enforceable undertaking - which includes payment of $110,000 - commits Virgin Blue to "a thorough overhaul and independent assessment of its email marketing practices". Virgin Blue acknowledged that it had "experienced problems" with its email marketing systems, leading to receipt by some previously unsubscribed consumers of new (and undesired) email.
ACMA Chair Chris Chapman commented that -
Businesses which market by email need to regularly test that the unsubscribe function in their messages is working properly. The Spam Act requires that a request from a consumer to be unsubscribed from commercial emails must be addressed. No further commercial electronic messages are allowed to be sent to the consumer five working days after an unsubscribe request is made.Announcement - sound the trumpets, beat the drums - aside, the undertaking does not provide much to write home about (ACMA's guide to undertakings is online [PDF]). It was more than a year in the making. It features standard wording in 'sorry but no admission' mode and promises to try harder in future. Virgin Blue will engage an independent third party to "thoroughly assess its email marketing processes" and to implement any recommended changes. It will also provide training to relevant employees, establish a complaints handling policy, and audit 10 per cent of its email marketing campaigns monthly for a year.
Readers are reminded that closing date for submissions in response to ACMA's call for comment on the draft national standard for the fax marketing industry is 4 February 2011.
ACMA is seeking views on the proposal to require a destination sending number (a 'header line') on all marketing faxes as part of the fax marketing industry standard. Submissions in previous consultations proposed inclusion of the additional information to assist in reducing the number of complaints arising from faxes that were originally sent to numbers not on the Do Not Call Register being redirected automatically to numbers that are on the register.
