Kmart cops $1.3m spam for spamming, ignored repeated warnings: ACMA

The Wesfarmers-owned retailer is the latest business to attract the ire of the communication watchdog, which has fined companies a collective $12.5m in the past 18 months.

In addition to paying a $1.3m fine, Kmart has agreed to appoint an independent consultant to review its compliance with spam rules and to make improvements where needed.

Kmart has been fined more than $1.3m by the communications watchdog after an investigation found the discount retailer sent hundreds of thousands of spam emails to customers and ignored repeated warnings from the regulator.

The Wesfarmers-owned retailer flooded Australians’ inboxes with more than 200,00 marketing emails within an 11-month period from July 2022.

This is despite those customers requesting to unsubscribe from the emails and Kmart receiving several warnings from the Australian Communications and Media Authority. Kmart has since conceded that the “issues should not have occurred”.

Kmart’s behaviour triggered a stern rebuke from ACMA chair Nerida O‘Loughlin, who said people were frustrated and angry with big brands intruding on their privacy by not respecting their wishes to unsubscribe.

What’s more, Ms O‘Loughlin said ACMA alerted Kmart on multiple occasions that it may have issues with its consumer marketing.

“When a customer decides to opt out of a marketing mailing list, businesses are obliged to fulfil that request.

“The rules have been in place for nearly 20 years and there is simply no excuse,” she said.

“Kmart’s case is particularly concerning as it went on for such a significant period. Kmart was given more than enough notice it may have a compliance issue, and it should have done more to address its problems before we had to step in and investigate.”

Australian Communication and Media Authority chair Nerida O’Loughlin says there is no excuse for not complying with spamming rules. Picture: John Feder

Kmart has agreed to appoint an independent consultant to review its compliance with spam rules and to make improvements where needed, and must also report regularly to ACMA.

A Kmart spokeswoman said: “We regret that any customers received emails from Kmart when they had opted out. These issues should not have occurred, and we are actively working to strengthen our systems”.

Businesses must have consent from consumers to conduct e-marketing, and must adhere to unsubscribe requests from customers, under anti-spam laws.

It comes as Wesfarmers attracted criticism for its support of the failed Voice referendum, which more than 60 per cent of Australians rejected.

Following the outcome of the referendum last month, Wesfarmers managing director Rob Scott doubled down, saying the nation must “seize this momentum” of Indigenous issues being cast a stronger spotlight.

At the same time, ACMA has been quick to fine companies for breaching advertising rules.

In the past 18 months businesses have paid more than $12.5m in spam and telemarketing penalties.

ACMA fined DoorDash more than $2m in August after an investigation found the food delivery service sent more than one million non-compliant texts and emails.

But online gambling company Sportsbet copped the biggest penalty from ACMA in February last year – a $2.5m fine for spamming customers trying to unsubscribe from its platform.

Sportsbet also paid $1.5m of refunds to customers after ACMA found it sent 50,000 marketing text messages and emails to more than 37,000 consumers who had tried to unsubscribe, as well as more than 3000 marketing texts that had no unsubscribe function at all.

Meanwhile, ACMA issued a caution to US billionaire Elon Musk’s satellite internet provider Starlink in September for failing to comply with advertising rules.

Starlink caught the attention of the Australian Communications and Media Authority as a result of a consumer complaint that it offered a promotion in July 2023 with a limited-time offer that had no end date.

“Any business that conducts e-marketing should be actively and regularly reviewing its processes to ensure it is complying with the rules,” Ms O’Loughlin said.

Other companies that have breached the spam laws include Ticketek and Uber.

ACMA also recently accepted enforceable undertakings from Webull and The Wine Collective after they admitted contravening spam laws.

Australian Communication and Media Authority, Nerida O’Loughlin says there is no excused for not complying with spamming rules. Picture: John Feder/The Australian.