The Spam Act for real estate agents: marketing emails and texts

Just-listed texts, open home follow-ups, market updates, newsletters: many of the messages agents send are marketing, and marketing emails and texts in Australia are covered by the Spam Act 2003.

The regulator is the Australian Communications and Media Authority (ACMA). It says the rules apply to any business that markets to Australian consumers by phone, email or SMS, regardless of its size or turnover.

This is general information, not legal advice. It covers the Spam Act only. Privacy law and your licensee’s policies may also apply. If you’re unsure, ask your licensee or get advice.

The rules in brief

ACMA’s page for businesses, avoid sending spam, sums it up. Before you send a marketing message, you need consent from the person receiving it. Then the message must:

1. identify you as the sender
2. include your contact details
3. make it easy to unsubscribe

That applies even when someone else sends the messages for you, such as your agency’s CRM or a mailing platform.

What counts as a commercial message

The Spam Act is about commercial electronic messages: email, text and instant messages. ACMA’s consumer page on what spam is says a message is commercial if it contains offers, advertisements or promotions, and that messages are generally not spam if they have no advertisements, are appointment or payment reminders, or are about a service you use.

The catch is that a little promotion goes a long way. In its January to March 2026 report, ACMA says that if a message contains any promotional or sales content, it’s commercial, whatever its main purpose. Promotional material reached through links or phone numbers in the message can also make it commercial. Logos or branding in an otherwise factual message generally aren’t, but ACMA warns to take care with embedded links.

Here’s how that might play out for an agent:

ACMA’s advice is that the simplest way to comply is to keep service or factual messages separate from anything that has, or links to, promotional content.

ACMA says telemarketing calls aren’t spam. Different rules apply to them, including the Do Not Call Register Act 2006.

Consent

ACMA recognises two kinds: express and inferred.

Express consent

Express consent means the person knows and accepts that they’ll receive marketing from you. ACMA calls it best practice. People can give it by filling in a form, ticking a box on a website, over the phone or face to face.

ACMA also says:

• Keep a record of who gave consent, when and how. Under the Spam Act, it’s up to you to prove you had it.
• Don’t ask by message. You can’t send an electronic message asking for consent, because that message is itself marketing.
• Explain what they’re agreeing to. ACMA’s statement of expectations recommends clear terms that explain what the marketing is for, who will use it, how long it will be used and how consent can be withdrawn.

Inferred consent

You may be able to infer consent if the person knowingly and directly gave you their address and it’s reasonable to believe they’d expect marketing from you. ACMA says this usually means a provable, ongoing relationship, with marketing directly related to that relationship. It doesn’t cover sending messages after someone has just bought something from you, and ACMA describes it as less reliable than express consent.

That makes it a weak basis for marketing to someone you met once at an open home. Ask for express consent instead.

Bought and shared lists

If you buy or use a marketing list, ACMA says you’re still responsible for having consent for every address on it. The Spam Act also bans using lists made with address-harvesting software. And it’s against the rules to help, encourage or be knowingly concerned in someone else breaking them.

Identify yourself

Every commercial message must accurately identify your name or business name and include correct contact details. If someone else sends on your behalf, the message must identify the business that authorised it. ACMA says to use your business’s correct legal name, or your name and ABN, and that this information must stay correct for at least 30 days after you send the message.

For an agent’s emails, a clear signature does most of this work. Our guide to what to put in your email signature covers the details, and our free email signature generator lays them out for you.

Make it easy to unsubscribe

ACMA says every commercial message must contain an unsubscribe option that:

• presents the instructions clearly
• honours a request within 5 working days
• doesn’t require a fee
• doesn’t cost more than the usual cost of using the address, such as a standard text
• works for at least 30 days after you sent the message
• doesn’t require the person to give extra personal information, or to log in or create an account

ACMA’s examples of clear wording include “Reply STOP” for texts and a working unsubscribe link or button for emails.

Two practical points:

• Alphanumeric sender IDs can’t receive replies. If your texts arrive from a name rather than a number, “Reply STOP” won’t work, so give another way to opt out.
• People can unsubscribe in other ways. ACMA tells consumers they can unsubscribe by using the link provided or by contacting the business through other channels. If a client tells you at an open home that they don’t want your texts any more, record it and act on it.

Sender IDs from July 2026

If you text from a name rather than a number, ACMA says that from 1 July 2026, unregistered sender IDs are labelled “Unverified” on people’s phones under the SMS Sender ID Register. Ask your SMS provider or your agency whether yours is registered.

Setting up open home follow-ups

1. Separate the sign-in from the consent. Ask for name, mobile and email to record attendance. Then add a separate, optional box for marketing, such as “Send me new listings and market updates from Mia Lawson at Harbourline Real Estate. Unsubscribe anytime.” Don’t tick it for them. (Mia Lawson and Harbourline are examples.)
2. Say what they’re agreeing to. Who will contact them, about what, by email, text or both, and how to stop.
3. Keep the record. Store who ticked the box, the date and the property. A digital sign-in makes that easier to find later than a paper sheet.
4. Be careful with people who didn’t tick the box. A follow-up about the property they inspected can still be commercial if it promotes the sale, and adding an appraisal offer, other listings or links to your marketing makes it commercial. If in doubt, treat it as commercial and don’t send it without consent.
5. Build identity and unsubscribe into every template. Your name, agency and contact details, plus a working unsubscribe, in every marketing email and text.
6. Keep one unsubscribe list. If someone opts out of your newsletter, make sure your texts, your agency’s CRM and any other tools you use stop too, within 5 working days.
7. Don’t ask by text. Messaging attendees to ask whether you can add them to your list is itself a marketing message.

For the rest of the open home, see what a digital business card should do there.

Penalties

ACMA can investigate, issue infringement notices, accept court-enforceable undertakings and take matters to court.

Recent cases show the size of the risk:

• In March 2026, ACMA announced that Lululemon had paid a $702,900 penalty after sending more than 370,000 emails with commercial content and no way to unsubscribe. They were service emails, such as shipping updates, that also contained sales material and links to promotions.
• In October 2024, ACMA announced that the Commonwealth Bank had paid a $7.5 million penalty after sending more than 170 million marketing messages without a way to unsubscribe. At the time, ACMA said the maximum court penalty for a company was $626,000 per day without a prior record, and $3,130,000 per day with one.

An agent’s list is much smaller, but the rules are the same.

Sources

• ACMA, avoid sending spam and dealing with spam.
• ACMA, consent expectations for businesses using direct marketing, 1 July 2024.
• ACMA, action on scams, spam and telemarketing: January to March 2026.
• ACMA, Lululemon penalised $702K for spam breaches, 11 March 2026, and Commonwealth Bank pays $7.5m for more spam breaches, 17 October 2024.

Based on ACMA’s guidance as we read it in October 2026. This is general information, not legal advice, and doesn’t cover every rule that applies to you.