Is your ‘Send to Friend’ campaign illegal?

- May 21, 2013 2 MIN READ

It’s one of the most common viral marketing techniques around – letting your readers, members etc send your content or services (or whatever) to a ‘friend’.  They simply drop their friend’s email into a form, hit send and another lead comes your way.  But could you be breaking the law?

(not so) Happy Meal

McDonald’s recently found out the hard way when the communications regulator, ACMA slapped it with a formal warning because its ‘Send to Friend’ feature on its Happy Meal website breached spam laws.  Why?  Because Macca’s couldn’t prove that the ‘friends’ had consented to receiving those emails.  And without consent, those emails become spam which is prohibited under the Spam Act.

The decision has marketers in a spin.  We all know (or should know) that people need to opt in to receiving your emails.  That’s what the tick box is for when users sign up for your services, for example.  But until now, users who referred friends to your site (using your form) were never thought of as causing you to spam those friends.  And if you now need to get consent from that friend, how do you do it?

Even if your email facility puts the referrer’s name as the sender (instead of you), you’re still causing the email to be sent.

How can you get consent?

You can’t email them to ask for consent, because that in itself is spam.  Could you ask your users to personally get their friend’s consent and somehow confirm it?  No thanks.  Even if your email facility puts the referrer’s name as the sender (instead of you), you’re still causing the email to be sent, which is enough to break the law.

ACMA’s position

ACMA have blogged about the issue and the frustration at both the rules and the ACMA Editor’s “not in a position to provide specific advice” responses to reader questions, is loud and clear.  But there is some justification for ACMA’s actions, because complaints from recipients of ‘friend get friend’ emails rank as one of their most common.

The upshot

One thing is clear, ACMA is prepared to crack down on ‘friend get friend’ campaigns and I’m sure Macca’s will be the first of many.  And from all the ‘friend’ forms I’ve seen in the marketplace, it’s highly likely your ‘friend get friend’ facility is causing you to spam others, and that my friend, is illegal.

David Bushby is the General Manager of Lean Contracts – a website providing basic legal templates to early stage start-ups.