Sky Hunt Pty Ltd
Guidelines for Use of Contact Information in Marketing

Sky Hunt Pty Ltd (Sky’s Personal Fitness) must ensure that all contact information collected by, or provided to us, is used in a manner that ensures our compliance with the Privacy Act 1988 (Cth) (Privacy Act) and the Spam Act 2003 (Cth) (Spam Act).

This guide sets out what we can, and cannot, do with contact information. In minor respects it goes further than our strict legal obligations but is intended to provide a practical guidance that will be safe and workable in most instances.

If you require further information, please contact us at admin@skyhunt.com.au

Summary
The rules for electronic marketing messages and conventional mail are different.
In both cases we must know the origin of the information in order to determine how we can use it.
For conventional mail marketing we can use address information for marketing if:
we collected the information in the course of our business;
the marketing is reasonably necessary for our business; or
the provider of the information would reasonably expect to use the information in that way and it is impractical for us to get express consent1.
For marketing by email, IM, SMS or MMS we can use an electronic address only if we comply with 1.3 and have consent.
we might have express consent2; or
we might be able to infer consent from circumstances or conduct of the person who’s electronic address we have obtained.
If we don’t have express consent and we don’t know enough about the circumstances or conduct of the person who’s electronic address it is in order to infer consent then:
we can’t use it for marketing; or
we can only send factual information identifying us as the sender and no more.
All electronic marketing messages must have our company name and ABN and a statement telling the addressee that they can use an address in the message to ask us not to send any more marketing messages.

More detailed Information
What kind of information is regulated?
The law regulates collection, storage, use and disposal of personal information. It also regulates the use of electronic addresses for marketing. Contact information is likely to be “personal information” under the Privacy Act. If the contact information is an electronic address that is to be used for marketing by means of an electronic message (email, MMS, IM or SMS), such use will be regulated by the Spam Act.

For the purposes of this guideline we will refer to “contact information” where contact information includes names, phone numbers, mobile numbers, physical addresses and email addresses. It may be provided to you by the person to whom the contact information relates (Contact), or by a third party.

The Privacy Act defines “personal information” as “information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”
For the purposes of the Spam Act, an electronic message is a message sent using an Internet carriage service or any other listed carriage service, to an electronic address, in connection with:
(i) an e-mail account;
(ii) an instant messaging account;
(iii) a telephone account; or
(iv) a similar account.
It is immaterial whether the electronic address exists and whether the message reaches its intended destination.
If a message is sent by way of a voice call made using a standard telephone service, the message is not an electronic message for the purposes of the Spam Act.
Although the Spam Act does not contain a definition for an “electronic address”, it does stipulate that phone numbers and e-mail addresses are examples of electronic addresses.

How can contact information be used?
We must use contact information only:

for the purpose for which it was provided by the Contact; or
for another purpose if:
the other purpose is related to the purpose for which the information was provided to us; and
the Contact would reasonably expect us to use the information for the other purpose; or;
if it was collected by Sky’s Personal Fitness, in the ordinary course of business, “as necessary for the conduct of Sky’s Personal Fitness’s business” in accordance with our Privacy Policy; or
if it is provided by a third party, for the purpose made known to the Contact at the time it was collected by the third party
if it is an electronic address, for sending marketing material if we have the inferred or express consent of the Contact for that use, they have not sent us an “unsubscribe” message and we have otherwise complied with the Spam Act (see 3.2 below).

Example: if a customer gives us their business card so that we can send them a catalogue, we may can use that information to send them updated catalogues or information on products that are related to the ones they are interested in. However, if the person had specifically defined what they wanted to receive and expressed a desire not to receive any other or further information, we must not provide any other or further information to them.

NPP 2 in Schedule 3 of the Privacy Act deals with the use and disclosure of personal information.

What to do when receiving contact information from a third party
We cannot use contact information:

(a)if we do not know the circumstances in which it was collected;
(b)if the contact information is an electronic address and we know that:
(i)the Contact has not provided express consent (and the Contact’s consent cannot be inferred);
(ii)they have sent us an “unsubscribe” message; or
(iii)we have otherwise not complied with the Spam Act (see 3.2 below); or
(c)unless we have taken reasonable steps to let the Contact know (unless it is obvious):
(i)that we work for Sky’s Personal Fitness, have their contact information and intend to use it for marketing purposes;
(ii)that they can gain access to the contact information; and
(iii)how we intend to use the information.
This obligation is the same for information we collect ourselves but is satisfied by making available our Privacy Policy.

If the Contact information is an electronic address we cannot use it unless we know that the address is not made up (i.e. it relates to a real person), that it was not harvested from the Internet, and that the Contact consents expressly or impliedly to the intended use.

National Privacy Principles (“NPPs”) 1 and 10 in Schedule 3 of the Privacy Act deals with the collection of personal information.

When can we use Contact information for direct marketing by non-electronic means
Generally, we must not use contact information for marketing unless the contact information was provided to us for that purpose.. However, we can direct market by non-electronic means, such as mail-outs, even where contact information was provided for another purpose, if:

it is impracticable for us to seek the Contact’s consent before direct marketing;
the Contact has not made a request to Sky’s Personal Fitness not to receive direct marketing;
when direct marketing, we draw to the Contact’s attention, or prominently display a notice, that the Contact may opt out of receiving any further direct marketing; and
the direct marketing sets out the Sky’s Personal Fitness business address and other contact details.
NPP 2.1(b) in Schedule 3 of the Privacy Act provides that:

An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless…if the information is not sensitive information and the use of the information is for the secondary purpose of direct marketing:

(i)it is impracticable for the organisation to seek the individual’s consent before that particular use; and
(ii)the organisation will not charge the individual for giving effect to a request by the individual to the organisation not to receive direct marketing communications; and
(iii)the individual has not made a request to the organisation not to receive direct marketing communications; and
(iv)in each direct marketing communication with the individual, the organisation draws to the individual’s attention, or prominently displays a notice, that he or she may express a wish not to receive any further direct marketing communications; and
(v)each written direct marketing communication by the organisation with the individual (up to and including the communication that involves the use) sets out the organisation’s business address and telephone number and, if the communication with the individual is made by fax, telex or other electronic means, a number or address at which the organisation can be directly contacted electronically.
Marketing by electronic means
Under the Spam Act, we must not market to anyone by means of an electronic message unless the recipient has consented to receiving the message. Faxes fall outside the scope of the Spam Act and can therefore be used for marketing purposes as described in section 3.1 above.

Consent

We can conduct marketing activities by electronic means if we have express consent to do so, or if we have inferred consent.

Express consent

Here are some examples of situations where we would have express consent to conduct marketing activities via electronic means:

the Contact has specifically requested material, either verbally or in writing, from Sky’s Personal Fitness;
the Contact has voluntarily added their electronic address to a mailing list compiled by Sky’s Personal Fitness, where it is clearly understood that future commercial electronic messages may be sent to the Contact’s electronic address; or
the Contact has voluntarily given their electronic address to Sky’s Personal Fitness over the telephone or in writing, where it is clearly understood that Sky’s Personal Fitness may send future commercial electronic messages to that address.
Inferred Consent

Inferred consent may be harder to determine. It can be taken from a person’s conduct or from some pre-existing business or other relationship.

Example: If the Contact’s electronic address has been obtained because that address has been conspicuously published in the public domain (e.g. on a web site or a brochure), without stating clearly that the Contact does not wish to be sent commercial electronic messages at that address, we may have inferred consent to send commercial electronic messages to that address that are directly relevant to their work. This does not necessarily mean that all publications of a person’s electronic address give inferred consent to receiving marketing. We must have regard to how the contact information is provided, and the context in which it is provided. It is relevant to consider whether the Contact would expect to receive marketing in the circumstances.

Existing Clients

Many of the contacts to whom we market are already clients of ours. A person’s consent to receiving commercial electronic messages may be inferred where they have a pre-existing business relationship with Sky’s Personal Fitness, and where, as part of that relationship, they have knowingly given us their electronic address. This does not constitute consent to receive all marketing emails and materials by electronic means. Unless there is evidence of a wider consent, the marketing must be relevant to the Contact’s work, or directly relate to the reason for which they gave their electronic address to Sky’s Personal Fitness.

Existing contact lists

The requirements described above apply to any existing contact lists. It does not matter when the contact list was gathered, or even how it has been used. This means that even though we may have used the list previously, we may not necessarily be able to do so now. We must be certain that we have either express or inferred consent to contact each Contact.

Example: If we have been sending marketing materials to a Contact, and that Contact has contacted us based on those messages (other than to opt out of receiving such messages), then we may have inferred consent to send further messages, so long as they are within the scope of the inferred consent given.

Unsure?

If you are unsure whether a contact has consented to receiving marketing materials by electronic means, there are two things you can do:

(a)contact the person by telephone and ask if they consent to receiving the commercial electronic messages; or
(b)don’t send them the messages.

Checklist for marketing by electronic means
Marketing materials sent using an electronic address must:

make sure the electronic message clearly identifies who is sending it (i.e. the author and Sky’s Personal Fitness, including our ABN);
if there is more than one recipient of the electronic message, make sure that one recipient cannot see the contact information of the other recipient(s); and
contain a message setting out an address that the Contact can use to “unsubscribe” from receiving further marketing messages from Sky’s Personal Fitness. It is important that the option of receiving no further marketing messages from the sender be offered.
All requests to unsubscribe must be dealt with within 5 working days.
If a person will not be checking the electronic address from which they have sent marketing material (eg. Email or mobile phone) for an extended period of time, the person must make sure that someone else has access to it so that all unsubscribe requests are actioned within this timeframe; and if a person knows that their email address or the electronic address from which they intend to send marketing information will be disabled in the next 30 days (either because they are going on extended leave or ceasing employment with Sky’s Personal Fitness), they must not use that address to send marketing information.

Section 16 of the Spam Act prohibits the sending of an unsolicited commercial electronic message. “Commercial electronic message” is defined in section 6 of the Spam Act, and “electronic message” is defined in section 5. Sections 17 and 18 of the Spam act require accurate sender information and a functional unsubscribe facility to be provided.