Black Friday: Is your electronic marketing playing by the rules?

Spam Act compliance

During Black Friday (and other key sales periods) businesses engage in marketing campaigns including the sending of commercial electronic messages. The Spam Act regulates the sending of promotional messages and material via email, SMS and instant message. As a consequence, the Spam Act governs most aspects of a business’s electronic marketing activity. Australian businesses must ensure their policies and processes for email and SMS marketing are Spam Act compliant.

In this context, ACMA has reiterated its enduring priority at combatting spam and telco scams in contravention of the Spam Act. In the last year alone, multiple businesses across a variety of sectors have been penalised for Spam Act contraventions, including several major corporations.

Enforcement objectives

ACMA’s recent enforcement action has a continued focus on:

1. The sending of marketing material via SMS, email or instant message to persons (defined in the Spam Act as commercial electronic messages – CEMs) without consent
2. Marketing messages sent without a functional ‘unsubscribe facility.’ A functional unsubscribe facility must state how a person can unsubscribe and must enable them to easily do so by clicking a link or sending a message (e.g. ‘stop’)
3. The sending of marketing messages more than 5 business days after a person has taken steps to unsubscribe.

Consequences for non-compliance

ACMA has a broad range of enforcement powers. Under the Spam Act, ACMA has the power to (among other things) issue infringement notices for pecuniary penalties. In this context, pecuniary penalties are calculated by reference to the number of messages sent in contravention of the Spam Act per day (see Schedule 3 of the Spam Act).

Given the nature of mass marketing, particularly during the Black Friday sales period, it is not uncommon for businesses to send hundreds or thousands of CEMs each day. Accordingly, the potential penalties may reach to tens of millions and require judicial discretion to reduce the penalty. Earlier this year, Tabcorp Holdings Limited received an infringement notice for over $4 million for contraventions under the Spam Act occurring across a three-month period from February to May 2024.¹

ACCC Black Friday Sweep

The ACCC has put retailers on notice ahead of Black Friday. The consumer regulator will be conducting a sweep of websites and advertising material to identify misleading or deceptive ‘sales’ advertising used by retailers during the Black Friday sales period.

The focus of the Black Friday sweep

The ACCC’s surveillance will focus on a range of conduct, including:

1. Misleading time representations, including, the use of phrases such as ‘three days only’ and devices such as countdown timers that don’t align with the true duration of the sale.
2. Claims of store-wide or site-wide sales, when in fact the sales involve exclusions.
3. Fine print or disclaimers that seek to limit headline claims about the sale, including member-only deals or excluding a range of products.
4. ‘Up to X per cent off’, where the ‘up to’ text is not prominently displayed, or where few or very few products are on sale at X per cent off.
5. Misleading ‘was/now’ or ‘strikethrough’ pricing representations.

Consequences for misleading sales tactics

Under the Competition and Consumer Act 2010 (Cth) the ACCC has broad enforcement powers including commencing proceedings in the Federal Court of Australia to seek civil penalties and/or compensation orders, obtaining enforceable undertakings and issuing infringement notices for pecuniary penalties.

Relevantly, the ACCC conducted a similar sweep of sales advertising by Australian retailers in 2024. Last year’s sweep uncovered a range of concerning practices, including those which are the focus of the 2025 Black Friday sweep.

Following the 2024 investigation, the ACCC launched a number of investigations and issued infringement notices. Utilising its broad enforcement powers, the ACCC may commence civil penalty proceedings in relation to false and misleading representations in contravention of the Australian Consumer Law (ACL).²

It follows that, now more than ever, Australian businesses must review their sales and advertising practices and ensure any sales or discount claims they make are accurate and clear, and are not likely to mislead or deceive consumers. If in doubt, seek expert advice.

Key areas of non compliance with the ACL and Spam Act

Businesses typically fall afoul of the ACL or Spam Act and find themselves subject to regulatory scrutiny for four main reasons:

1. Reliance on third party marketing companies and SMS providers.
2. Failure to have express or inferred consent for the sending of electronic marketing material, and to ensure that records of consent are maintained and updated.
3. Messages sent for mixed purposes – both informative and commercial. Any commercial message will need to comply with the Spam Act (e.g. a shipping update, with a link back to the company website).
4. Delay in addressing complaints from customers about spam and/or clarifying consume misconceptions.

How to ensure regulatory compliance this Black Friday

We recommend the following key steps to manage compliance with the Spam Act and to avoid misleading or deceptive advertising:

1. Obtain expert advice on compliance and, if required, early and strategic engagement with regulators.
2. Regular reviews of policies and procedures, including a business’s general terms and conditions and privacy policy, as well as processes for obtaining, recording and updating consent.
3. Perform due diligence and periodic audits to confirm that third party providers are accurately maintaining customer databases and functional unsubscribe facilities.
4. Ensure informative communications (e.g. regarding order confirmation and delivery updates) are not accompanied by links to the business’s website or other material that may be considered a CEM.
5. Train customer-facing staff to ensure proper processes for obtaining and recording consent.
6. Monitor for common technical issues that may lead to contraventions of the Spam Act, including non-functioning unsubscribe facilities, changes to the message a customer is required to send to unsubscribe (e.g. from ‘stop’ to ‘stopnow’) and inadvertent duplication of customer records.
7. Be specific with advertising campaigns and clearly note any limitations and/or exemptions.
8. Use clear, accurate and easy to understand language in marketing material.
9. Ensure a reasonable basis for any statements about the future or particular characteristics of a product.

One thing is clear, Australian businesses cannot afford to be complacent with their regulatory compliance this Black Friday. The ACCC and ACMA are becoming increasingly active with surveillance and enforcement action. Regulatory action can be costly to businesses and can cause substantial damage to a business’s reputation.