The Australian Communications and Media Authority’s (ACMA)’s recent $702,900 penalty against Lululemon Athletica Australia Pty Ltd (Lululemon) is a sharp reminder that “service emails” can easily become unlawful marketing communications if not handled carefully.
Between December 2024 and January 2025, Lululemon sent more than 370,000 emails to Australian customers that were framed as order confirmations and shipping updates. However, the emails also contained promotional material and links to sales offers, and did not include an unsubscribe option. ACMA found this breached the Spam Act 2003 (Cth) (“Spam Act”).
Why this matters legally
Under the Spam Act, an electronic message is “commercial” if it promotes or advertises goods or services even if the message also serves a transactional purpose. ACMA has been clear that there is no grey area: if promotional content is included, the message must comply with all spam requirements, including a functional unsubscribe facility.
In Lululemon’s case, the regulator found the company had mischaracterised mixed‑purpose emails as service messages. The result was not only a significant financial penalty, but also a court‑enforceable undertaking requiring an independent compliance review and ongoing reporting to ACMA.
Key takeaways for businesses
- Promotional content = marketing email, regardless of context
- Transactional and marketing communications should be kept separate
- Every marketing message must include a clear and working unsubscribe mechanism
- Spam compliance is increasingly a governance and risk issue, not just a marketing concern
ACMA has described this as the fifth enforcement action in 18 months involving misclassified emails, with businesses paying more than $6.7 million in penalties during that period.
For Australian businesses, the lesson is simple: small compliance oversights in high‑volume communications can carry significant regulatory and reputational risk.
Stacey Brennan
Lawyer