Express or inferred consent: which one does your dealership actually have?

Most dealers assume that if a customer is in the DMS, they can be messaged. That assumption is where compliance problems start. Under the Spam Act 2003, consent is not a single yes or no. There are two types, they carry very different risk, and knowing which one applies to each contact is the difference between a confident campaign and a complaint to ACMA.

The two kinds of consent

Express consent is the strong version. The customer has clearly agreed to receive marketing messages from you, usually by ticking a box, signing a form, or replying to confirm. It is specific, it is recorded, and it is easy to defend if anyone ever asks.

Inferred consent is the weaker version. The Australian Communications and Media Authority allows consent to be inferred from an existing business relationship or from the conduct and reasonable expectations of the person. If someone bought a car from you last month, you can reasonably infer they expect service reminders and related contact. The catch is that inferred consent is not permanent and it is not unlimited. It fades as the relationship ages, and it does not stretch to cover every message you might want to send.

Where dealerships get caught out

The common trap is treating a five year old sales record as live consent. A customer who bought once, years ago, and has not engaged since is a long way from a reasonable expectation of marketing contact. The same applies to data bought, merged from an acquisition, or scraped from old portal enquiries. None of that is express consent, and the inferred kind is thin at best.

ACMA has been clear that the burden of proof sits with the sender. If a complaint is made, you need to show why you believed you had consent. "They were in our database" is not an answer. The regulator publishes its enforcement actions, and penalties for breaches of the Spam Act run into significant sums for businesses that send commercial messages without proper consent.

The other catch is scope. Inferred consent from a service relationship covers service-related contact. It does not automatically licence finance offers, trade-in campaigns, or third-party promotions. The further your message drifts from the original reason for the relationship, the weaker your position.

How to put your database on solid ground

The fix is not complicated, it is just disciplined. Start capturing express consent at every natural touchpoint: the enquiry form, the sales contract, the service booking, the handover. Make the opt-in clear and specific, and record when and how it was given.

From there, three habits keep you safe. Keep a timestamped record of consent for every contact, so you can prove it later. Honour every unsubscribe immediately and permanently, because the Spam Act requires a functional opt-out on every commercial message. And review the age of your inferred-consent contacts, because a relationship that has gone quiet for years is no longer a safe basis to message on.

This is where good systems earn their keep. Dealerloop keeps the consent status, the source, and the opt-out history attached to each contact, so the team is not guessing about who can be messaged and who cannot. The right message to the right person becomes the easy default, not a compliance gamble.

The takeaway

Express consent is an asset. Inferred consent is a temporary courtesy with limits. Knowing which one sits behind each contact, and being able to prove it, is what separates a dealership that markets with confidence from one that is one complaint away from a problem. Treat consent as a record you build, not an assumption you carry.

Sources: ACMA: Consumer consent, expectations for businesses conducting telemarketing and e-marketing, Spam Act 2003 (Cth), Federal Register of Legislation, ACMA: Avoid sending spam (rules for businesses). Figures are industry findings, not Dealerloop results.