PointsBet Australia Fined AU$500,800 for Spam and Email Violations

A major enforcement action highlights critical email compliance requirements

The Australian Communications and Media Authority (ACMA) earlier this week has imposed a AU$500,800 fine on PointsBet Australia Pty Ltd for violations of spam legislation and self-exclusion protocols. The substantial penalty emphasises the importance of adhering to email marketing regulations, particularly regarding consent and unsubscribe functionalities.

Key Violations

Spam Act Breaches

Between August and November 2023, PointsBet sent over 800 promotional communications that violated Australia’s Spam Act, including:

• 705 emails promoting gambling services without a functional unsubscribe mechanism
• 90 marketing text messages lacking sender identification
• 7 unsolicited promotional emails

Self-Exclusion Protocol Violations

PointsBet sent 508 marketing communications to individuals registered with BetStop, Australia’s National Self-Exclusion Register (NSER), during August and September 2023. This action contravened regulations prohibiting licensed wagering services from contacting self-excluded individuals.

ACMA confirmed that despite these breaches, no self-excluded individuals were able to place bets during the period in question.

ACMA’s Enforcement Response

ACMA Chair Nerida O’Loughlin emphasized the seriousness of these violations: “It is deeply concerning that these failures have impacted PointsBet’s customers, some of whom had taken proactive steps to exclude themselves from online wagering.”

In response to the breaches, PointsBet has entered into a legally binding agreement with ACMA, requiring:

• A comprehensive review of its compliance procedures by an independent party
• Implementation of all resulting recommendations
• Regular staff training on spam obligations and self-exclusion requirements

While financial penalties could not be applied to the NSER breaches due to the novel nature of the matter, ACMA clarified that any future non-compliance could result in court-ordered fines.

Recent ACMA Penalties: A Broader Perspective

PointsBet’s fine is part of a broader enforcement trend by ACMA, which has issued over AU$16 million in penalties related to spam and telemarketing breaches in the past 18 months. Notable cases include:

• Commonwealth Bank of Australia: AU$7.5 million fine for sending over 170 million emails without a functional unsubscribe option
• Pizza Hut Australia: AU$2.5 million fine for dispatching over 10 million marketing messages without consent or unsubscribe options
• DoorDash: AU$2 million fine for sending 566,000 emails to unsubscribed customers and 515,000 texts without unsubscribe facilities
• Luxottica (OPSM, Sunglass Hut): AU$1.5 million fine for sending over 200,000 marketing messages without consent or unsubscribe options
• Telstra: AU$626,000 fine for sending 10.5 million texts with non-compliant unsubscribe mechanisms
• Kmart: AU$1.3 million fine for dispatching marketing emails without consent
• Uber Australia: AU$412,500 fine for sending marketing emails without consent or functional unsubscribe options
• Ticketek: AU$515,040 fine for sending marketing emails and SMS without consent
• Outdoor Supacentre: AU$302,500 fine for sending marketing SMS without consent

Implications for Email Marketers

These enforcement actions highlight the critical need for email marketers to:

1. Obtain Explicit Consent: Ensure that all recipients have explicitly opted in to receive marketing communications
2. Provide Clear Unsubscribe Options: Include functional and easy-to-use unsubscribe mechanisms in all marketing emails and messages
3. Respect Self-Exclusion Registers: Regularly update and cross-reference marketing lists with national self-exclusion registers like BetStop to avoid contacting self-excluded individuals
4. Regular Compliance Audits: Conduct periodic reviews of marketing practices to ensure adherence to current laws and regulations

The substantial fines imposed by ACMA serve as a stark reminder of the importance of compliance in email marketing, especially for businesses operating in regulated industries such as gambling services.