Thumbs down to McDonald’s “send to friend” campaign

In December 2012, the Australian Communications and Media Authority (ACMA) issued McDonald’s Australia Limited (McDonald’s) with a formal warning about its ‘send to friends’ facility on its McDonald’s Happy Meal website.

The formal warning was issued under section 41 of the Spam Act 2003 (Cth) (Spam Act).  ACMA concluded in its warning that McDonald’s ‘send to friends’ facility had contravened the Spam Act as:

• McDonald’s sent, or caused to be sent, electronic messages without the consent of the recipient as required by subsection 16(1); and
• the electronic messages did not contain a functional unsubscribe facility to allow the recipient to opt-out of receiving messages as required by subsection 18(1).

‘Send to friends’ facility

McDonald’s ‘send to friends’ facility invited visitors to allow McDonald’s to send to a ‘friend’ promotional emails containing information on games and activities and links to their website.

ACMA found that McDonald’s ‘send to friend’ facility did not have the functionality to obtain consent from the recipient of the messages prior to the message being sent.  Although the messages were not being sent by McDonald’s directly, ACMA held McDonald’s as liable under section 16 of the Spam Act because:

• it has caused the messages to be sent by providing the means for it to happen through their ‘send to friend’ facility; and
• it could not be established that the recipient consented to receiving the messages.

In addition, ACMA warned McDonald’s on its failure to provide a functioning ‘unsubscribe’ or ‘opt-out’ facility, which is a breach of section 18 of the Spam Act.

Liability for indirect messaging

ACMA’s warning against McDonald’s has highlighted the fact that a person or entity can be liable for messages that infringe the Spam Act, even if those messages were not sent directly by them, provided that person or entity had caused the messages to be sent.

Obtaining consent

Section 16 of the Spam Act requires consent to be obtained from a recipient of messages, such as the messages sent by McDonald’s through their ‘send to friends’ facility.

Schedule 2 of the Spam Act defines consent as:

• express consent; or
• consent that can be reasonably inferred from the conduct and the business and other relationships of the individual or organisation concerned.

Requiring the recipient to enter in their electronic mail addresses before receiving messages is an example of how McDonald’s could have avoided contravening this section.

What this means for you

Any business looking to use a ‘send to friends’ facility to promote their business should be weary of their obligations if they are causing messages to be sent to ‘friends’.

Requiring a recipient to personally provide you with their email address or a confirmation notice of their consent could help to establish your compliance with section 16 of the Spam Act.

In addition, message sending sources should be tested to ensure that they have a functioning unsubscribe facility prior to being distributed to ‘friends’.

Links and further references

ACMA’s formal warning to McDonald’s Australia Limited (13 December 2012)

Further information

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Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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