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Australia | Publication | November 2025
This article was co-authored with Taylor Empeigne.
Australian regulators are turning up the heat this Black Friday. In particular, the Australian Communications and Media Authority (ACMA) has reiterated its enduring priority of combatting emails and texts sent in contravention of the Spam Act 2003 (Cth) (Spam Act). In addition, the Australian Competition and Consumer Commission (ACCC) has announced its Black Friday surveillance of misleading ‘sales’ advertisements. Black Friday is a prime time for businesses to advertise online, via email and SMS. Now more than ever, Australian businesses must review their sales and advertising practices to avoid regulatory scrutiny regarding Spam Act contraventions and misleading advertising.
During Black Friday (and other key sales periods) businesses engage in marketing campaigns including the sending of commercial electronic messages. The Spam Act regulates the sending of promotional messages and material via email, SMS and instant message. As a consequence, the Spam Act governs most aspects of a business’s electronic marketing activity. Australian businesses must ensure their policies and processes for email and SMS marketing are Spam Act compliant.
In this context, ACMA has reiterated its enduring priority at combatting spam and telco scams in contravention of the Spam Act. In the last year alone, multiple businesses across a variety of sectors have been penalised for Spam Act contraventions, including several major corporations.
ACMA’s recent enforcement action has a continued focus on:
ACMA has a broad range of enforcement powers. Under the Spam Act, ACMA has the power to (among other things) issue infringement notices for pecuniary penalties. In this context, pecuniary penalties are calculated by reference to the number of messages sent in contravention of the Spam Act per day (see Schedule 3 of the Spam Act).
Given the nature of mass marketing, particularly during the Black Friday sales period, it is not uncommon for businesses to send hundreds or thousands of CEMs each day. Accordingly, the potential penalties may reach to tens of millions and require judicial discretion to reduce the penalty. Earlier this year, Tabcorp Holdings Limited received an infringement notice for over $4 million for contraventions under the Spam Act occurring across a three-month period from February to May 2024.1
The ACCC has put retailers on notice ahead of Black Friday. The consumer regulator will be conducting a sweep of websites and advertising material to identify misleading or deceptive ‘sales’ advertising used by retailers during the Black Friday sales period.
The ACCC’s surveillance will focus on a range of conduct, including:
Under the Competition and Consumer Act 2010 (Cth) the ACCC has broad enforcement powers including commencing proceedings in the Federal Court of Australia to seek civil penalties and/or compensation orders, obtaining enforceable undertakings and issuing infringement notices for pecuniary penalties.
Relevantly, the ACCC conducted a similar sweep of sales advertising by Australian retailers in 2024. Last year’s sweep uncovered a range of concerning practices, including those which are the focus of the 2025 Black Friday sweep.
Following the 2024 investigation, the ACCC launched a number of investigations and issued infringement notices. Utilising its broad enforcement powers, the ACCC may commence civil penalty proceedings in relation to false and misleading representations in contravention of the Australian Consumer Law (ACL).2
It follows that, now more than ever, Australian businesses must review their sales and advertising practices and ensure any sales or discount claims they make are accurate and clear, and are not likely to mislead or deceive consumers. If in doubt, seek expert advice.
Businesses typically fall afoul of the ACL or Spam Act and find themselves subject to regulatory scrutiny for four main reasons:
We recommend the following key steps to manage compliance with the Spam Act and to avoid misleading or deceptive advertising:
One thing is clear, Australian businesses cannot afford to be complacent with their regulatory compliance this Black Friday. The ACCC and ACMA are becoming increasingly active with surveillance and enforcement action. Regulatory action can be costly to businesses and can cause substantial damage to a business’s reputation.
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