generateleads.com.auSlip 6 of 6 · Records of consent

Slip 6 · Proving permission

Keeping consent records

The ACMA says to keep a record when a person gives express consent, including who gave it, when and how, because under the Spam Act it is up to you to prove that you have a person’s consent. Its statement of expectations adds two more details: the terms that applied, and the time as well as the date.

General information, not legal advice. The ACMA’s Avoid sending spam page and its statement of expectations on consent are the places to check. The statement describes itself as a guide to better practice, not a definitive compliance guide.

What a record holds

The drawing below lays out, as an illustration, a blank record with the details the ACMA names. The layout is this guide’s; the first four fields come from the ACMA, and the fifth is marked as this guide’s own suggestion.

Record of consentOne per person, per consent
  1. Who gave itThe person who consented.
  2. WhenThe date and the time it was obtained.
  3. HowThe method: a form, a website tick box, a phone call or face to face.
  4. The terms that appliedThe wording the person saw or heard when they agreed.
  5. Withdrawn (this guide’s addition)When an unsubscribe or withdrawal arrived, and when it was actioned.
An illustrative blank record. Fields 1 to 3 are the ACMA’s “who, when and how”; field 4 is its “terms that applied”; the “how” methods are the ways the ACMA says express consent can be given. Field 5 is not an ACMA requirement.

Why keep the terms? The ACMA expects consent terms to cover what the consent is for, who will use it, how long it will be used and how it can be withdrawn, and to be readily accessible where consent is given. In this guide’s reading, a record of a tick without the words beside it shows that something was agreed but not what. The withdrawal field is suggested for a similar reason: the Spam Act’s 5-working-day limit for honouring an unsubscribe is easier to show with a date on each side.

Records kept by someone else

If an agency, an affiliate or a list provider gathers the consent, the ACMA tells businesses not to assume those third parties will keep or obtain records of consent and marketing. It expects oversight and assurance processes so the records are reliably kept, whether by the third party or by the business itself, and if the ACMA requires them using its compulsory information-gathering powers, they must be produced.

An open drawer in a grey metal filing cabinet, packed with paper index cards and two yellow divider tabs.
Index cards in an open filing-cabinet drawer. Photo by Maksym Kaharlytskyi on Unsplash

Consent that runs out

Consent that ends

An unsubscribe request has to be honoured within 5 working days. For calls, inferred consent ends immediately once a person says they do not want to receive them. The ACMA’s statement lists three related practices that will generally not meet its expectations:

A second tick

Among its consumer-friendly practices, the ACMA suggests considering a double opt-in: a confirmation, such as an email, that consent has been given, possibly linking to a page where the person can manage their preferences. It is a suggestion, not a rule in the Act, and it also leaves a second dated entry for the record.

Sources for this slip