How to resolve AdBlock issue? ACMA fines are a warning to retailers: Esendex's Walsh asks, is your customer workflow compliant?
By Jonathan Walsh >>
ONCE YOU’VE SET UP a marketing workflow for new orders, you’d think the hardest part is done – now all you have to do is wait for customers to purchase, and let the system automate the communications for you. But recent Australian Communications and Media Authority (ACMA) fines mean this isn’t the case.
Lululemon made headlines earlier this year after receiving a hefty $702,000 fine for emails it sent over the 2024 Christmas holiday period. These were regular service emails, like order confirmations and shipping updates, but the emails contained sales material and promotional links without the option to opt-out. 
The lack of an opt-out combined with the messages being deemed as ‘commercial’ in nature resulted in the company being fined by ACMA.
It’s a warning to retailers. Compliance matters, and if you’re not vetting your marketing communications closely, you could be putting your own business at risk.
The hidden cost of a hidden upsell
Under pressure to maximise sales and total cart value, the line between transactional updates and product pushes is blurring. If you know your customer is more likely to open a specific email – for example, one telling them their order has been shipped – it’s tempting to make use of that touchpoint to add in some promotional messaging too.
But this latest ACMA ruling highlights that tagging on some commercial content onto the end of an informative email might not be as harmless as you think.
In Lululemon’s case, the problematic emails didn’t mention any other products specifically. But the bottom of order confirmation emails had buttons with ‘shop women’s’, ‘shop men’s’, and ‘shop accessories’ – with each linking back to that specific product category.
And the footnote of each email had links back to ‘women’s’ and ‘men’s’ sections.
In ACMA’s eyes, these additions – though small – meant that the email was considered commercial, rather than as informative or service messages.
For commerce teams, the key takeaway here is that using your customer communications messages for more than one purpose doesn’t just dilute what you’re trying to say, but could also be putting you under regulatory scrutiny.
Compliance matters even more for global brands
A transactional email’s primary purpose is exactly that – to facilitate a transaction. As soon as you add ‘you might also like…’ or a banner advertising a spring sale, the legal classification shifts. It becomes commercial.
Global brands also have to consider how regulations differ in other regions. In the EU, for example, GDPR requires explicit opt-in consent and easy opt-out options.
UK mobile network provider EE was previously fined £100,000 for sending more than 2.5 million messages to customers who had not agreed to marketing communications.
CAN-SPAM in the US is even more severe, with individual emails in breach of the rules subject to penalties of up to $53,000. So any non-compliance results in a very expensive marketing campaign.
The fines being handed out by regulators aren’t just a slap on the wrist – ACMA fines in recent years have exceeded A$1 million.
With the market under increased regulatory scrutiny, businesses shouldn’t delay reviewing their comms in light of the rulings. You might fly under ACMA’s radar, but the time it takes to audit your comms is much smaller than the impact of an investigation.
Tips to get your workflow compliant
Start by considering what the primary purpose of the message is. Is it commercial or is it designed to be informative?
Ensure that there aren’t any overlaps – if the message is supposed to be telling the customer something important, the message shouldn’t be lost in promotional content.
The easiest way to comply with ACMA ruling (and the rulings in other regions) is to keep informative or service messages completely separate from any promotional content.
The other key element to confirm is whether your promotional emails have a clear opt-out. This is mandatory for messages that contain anything remotely salesy.
As the Lululemon example highlights, that doesn’t just mean product recommendations – even generic shopping links back to your site count.
Best practices beyond compliance
Sustainable growth requires more than just mass-fired promotional emails.
Instead, the best way for brands to build trusted relationships with their customers is with personalised multi-channel communications that respect consumer preferences and offer value without breaching privacy regulations.
One question retailers can ask themselves is if they’ve become over-reliant on sending emails, rather than using a mix of communication methods.
Diversifying can help to improve open rates and customer experience by letting them be contacted on the channels they prefer. You can also allocate different channels to specific message types.
For example, if you need to send a notification that a home delivery is expected in the next hour, SMS or WhatsApp might be a better option than email, since texts are more likely to be opened quickly. That’s especially true for users who predominantly browse and buy through mobile devices.
With tools like WhatsApp, you can also enable two-way communication within the same chat – so in the event the customer does have a problem, there’s an easy thread for them to pick up, without worrying that they’re sending an email to an unmonitored inbox.
Separating out messages by channel means customers can immediately see time-sensitive updates – like a delivery alert – that require them to take action. Meanwhile, email can remain a powerful medium for storytelling and commercial content, offering a low-pressure space for consumers to explore and engage with whenever they’re ready.
A unified platform can help
Customers today have high expectations. That means smooth, multi-channel experiences need to become the norm, not an exception.
But that’s easier said than done. Trying to manage marketing campaigns across SMS, WhatsApp and email can be tricky. Vital customer information can be recorded on one platform but not brought across to another, leading to fragmentation and potentially dangerous compliance gaps.
The customer’s personal experience is put at risk too – they might be accidentally added into duplicate campaigns across channels, or have their complaint lost and left unaddressed in an unmonitored inbox.
You can’t deliver the service modern customers expect with a jumbled collection of apps and software. The best way forward is with a single unified comms platform.
This acts as a single source of truth, allowing customer records to be updated in real-time regardless of the channel used. In the event a customer makes a complaint by email, and then follows up by WhatsApp, it means the company can see the whole chain of events without having to ask the customer “can you explain why you’ve contacted us today?” every time they get passed to a new agent.
It also means that you can adapt your comms flexibly to suit the customer’s preferences and the type of message – like sending a text notification for an imminent delivery rather than an email.
Taking a unified approach helps to solidify customer data and make it easier to offer personalised experiences without taking hours of manual admin. It’s also a great futureproofing strategy, ensuring that your comms are scalable without losing messaging quality or consistency.
Double-check before you hit send
Businesses shouldn’t get complacent. Just because your email workflow was compliant once, it doesn’t mean that it still is. Regulations are evolving constantly, and if you’re selling into global markets, you’ve got even more to keep on top of.
ACMA’s recent fines are a reminder for all businesses to check that your marketing campaigns are compliant, and the time to check them is now.
Compliance isn’t a barrier to sales, but it’s a foundation for a good brand-customer relationship. A $700k fine could buy a lot of legitimate marketing efforts – don’t waste it on a non-compliant email.
About the author
Jonathan Walsh is the managing director of Esendex Australia, part of the global Esendex group that has been at the forefront of communications technology for more than 25 years. Esendex has been known as a ‘challenger brand’ from its formation and today carries forward its spirit of agility and innovation – and that drive is matched by the company’s unwavering commitment to security, compliance and resilience. About 46,000 business customers worldwide use the Esendex platform and APIs to deliver timely, engaging and cost-effective SMS, RCS, email, WhatsApp and voice communications.
ENDS