The media authority has cleared Marriage Alliance of breaches of the Spam Act after investigating the no campaign group for sending emails seeking donations without the apparent consent of all recipients.
After Guardian Australia published details of a leaked memo dated 31 August showing that the Australian Communications and Media Authority believed the emails could constitute spam, a spokeswoman revealed the investigation has now been finalised.
The Marriage Alliance emails have been cleared due to a technicality about what constitutes “commercial” communications despite earlier advice that the messages may have been unsolicited.
In the memo Acma notes that it had “received reports of emails being sent by a group called Marriage Alliance Limited” which sought donations for the Coalition for Marriage, the no campaign in the same-sex marriage postal survey.
“There is some prima facie evidence to suggest that at least some of the messages have been sent without consent,” the memo stated.
“The Acma has written to Marriage Alliance (on 30 August) requesting specific information on whether its fundraising emails have been authorised by an exempt body and asking for details of any consent it may have to send these emails.”
The memo is addressed to Jennifer McNeil, the general manager of Acma’s content, consumer and citizen group and was prepared by executive managers in the groups responsible for unsolicited communications (Jonquil Ritter) and content safeguards (Jeremy Fenton).
The memo notes that political interest groups may seek to contact members of the public by phone, SMS or email provided the contact “is not commercial ie contains information only”.
“However, where such groups are soliciting donations, the obligations of the [Do Not Call Register] Act, the Spam Act and the industry standard may apply.”
On Tuesday the Acma spokeswoman said that it is now “satisfied that the particular emails do not contravene the Spam Act”.
“Soliciting donations does not constitute commercial electronic messaging under that Act.”
However, the response from Acma does not indicate whether the media authority has established that all recipients consented to the message.
In April 2016 a number of Liberal members complained publicly that they had received campaign material from Marriage Alliance despite not signing up to its mailing list.
In May 2016 a Marriage Alliance spokeswoman, Sophie York, apologised for the fact that some members of its email list “had their addresses added without their consent”, describing it as a “serious issue” and promising to investigate.
The memo notes that the Spam Act prohibits commercial emails and SMS messages “unless pre-existing consent has been given”.
“An exemption applies to certain commercial emails and SMS messages sent, or authorised to be sent, by political parties, government bodies or registered charities.
“However, in the case of exempt messages, they must still identify who authorised the sending of the message.”
According to a search of the Australian Securities and Investments Commission register, Marriage Alliance Limited is an Australian public company but it is not listed as a charity on the Asic record or in a search of the Australian Charities and Not-for-profits Commission register.
The memo does not specify which Marriage Alliance emails are being investigated but communications written by Sophie York frequently include calls for donations.
One email dated 22 August includes a Coalition for Marriage ad featuring Tony Abbott warning: “If you degender marriage a whole lot of other things come in its wake.”
The same email urges people to “give generously” because the no campaign does not “have the resources of our opponents, or the support of much of the mainstream media”.
The email asks for donations of between $100 and $1,000, or “any other amount”.
Guardian Australia contacted Marriage Alliance and the Coalition for Marriage for comment.
