How Can I Legally Collect Email Addresses? Practical Methods for Gaining Consent

The penalties for sending unsolicited (or spam) marketing emails in Australia can be severe – with possible penalties upwards of $400 per email. Yet, some direct marketers in Australia have adopted a relatively blasé approach to consent and compliance with Australian spam laws. While less than ideal, it’s not completely unsurprising given the Australian Communications and Media Authority’s (ACMA) approach to spam email enforcement in the past.  

In fact, of the 7 enforcement actions taken by the ACMA for ‘sending marketing emails without consent’ since 2017, just one company received an infringement notice. Kalkine Media Pty Ltd received a $100,800 infringement notice and enforceable undertaking in May 2021.  

Nonetheless, businesses and organisations should care about the legal collection of email addresses for marketing emails. Sending spam emails can affect your reputation and your brand, since consumers value feeling control over their personal information – including their email addresses.  

In this post, we’ll share how direct marketers can effectively and legally collect email addresses. If you need more information about the email marketing laws that cover direct marketers in Australia, read our earlier blog post on the topic.  

Consent is Key for Marketers Looking to Legally Collect Email Addresses 

Marketers can rely on express or inferred consent to add email addresses to email marketing lists, but it’s best to obtain express consent wherever possible. While we will outline some common techniques for achieving this below, feel free to get creative in your efforts to obtain consent. However, don’t confuse creative with deceptive. Anyone handing over their email address to receive emails for marketing purposes should not be under any illusions about what they’re doing. If they aren’t 100% certain, you haven’t gained their informed consent.  

Recording Details of Consent 

Another important note is that you should record details regarding how and when consent was given whenever you add an email address to your marketing list.  

If you use email marketing platforms (like Mailchimp, SendBlue, ConvertKit, or similar) and you link the email marketing platform to your signup collateral on your website, the platform will record those details for you. If not, you should ensure there are processes in place to ensure you record and retain those records. This is important because the email sender bears the burden of proof if a claim arises.  

Note: You cannot send an email to seek consent to send marketing emails.  

The initial email seeking consent is considered a marketing communication and can be used as the basis for a claim against your business.  

Practical Methods for Gaining Consent 

Here are some practical methods to legally collect email addresses:

• Add a popup to your website that asks visitors to your site to sign up for marketing emails. You might be surprised by how effective this is!  
• Incentivise signing up for marketing emails with access to a promo code, a free gift, or similar.  
• Create informative content that can only be accessed if the website visitor provides their email address – for example an eBook on a relevant topic.  
• If you’re a retailer, ask your sales staff to seek verbal consent at the time of purchase. Many email marketing platforms can link to POS Systems, automatically adding the email addresses provided by customers at the point of sale to your marketing list.  
• Add an ‘email signup’ webpage to your social media pages.  
• Create an email newsletter signup form and add it to several different spots on your website.  
• Ask participants in company events to provide consent to receive marketing emails.  
• Attach a QR code to your company’s receipts that transport customers to an email signup page on their smartphone.  
• Run a competition that requires participants to provide consent to receive marketing emails.  

 If you’re uncertain about whether your marketing efforts are compliant with Australian law or respectful to your customers’ privacy, get in touch. Our team of privacy lawyers is passionate about achieving outcomes that are beneficial for businesses and respectful of customers.