Email Marketing and the Anti Spam laws

FAQ's provided by the anti-spam team at info@antispam.govt.co.nz

Q: Does receiving a business card count as inferred consent?

A: That would depend on the circumstances of the swap. Inferred consent relates to the development of a relationship between parties. It would only apply if the electronic message send specifically related to the relationship that had developed at the time the business card was supplied.

Q: Is it legal to buy lists if they were not electronically harvested?

A: You must be very careful. You do not know where they have got their list, it may have been generated with address harvesting software and of course consent must be able to be established.

Q: Can I establish consent by emailing my existing customer database asking them to unsubscribe if they do not wish to receive messages?

A: No. A commercial electronic message may only be sent if the recipient has consented to receive it. If you don’t think that the recipient has consented then the ‘click here to unsubscribe’ type of email cannot establish consent for future purposes. Many recipients may treat it as spam and not respond or even open it. There is no real relationship when the communication is one-sided and the recipients silence should not be taken as acquiescence.

Q: If I have swapped business cards with someone do I have to keep the cards as proof of consent?

A: If there is a direct relationship and consent applies it would be preferable for you to retain the business cards in some form. If there is a complaint under the Act it is up to the sender of the electronic message to prove that consent exists.

Q: If I send out media releases do I need to ensure my media contacts opt-in?

A: It can be inferred from the business of your media contacts that they agree to receive your media releases that you might have inferred consent to send it. If you are not sure, write to them and get their express consent. Can also be deemed if the address is conspicuously published i.e. website and the messages is relevant to the business

Q: Is verbal consent okay and do I have to keep a record of it?

A: Yes, it is okay. There is no obligation in the Unsolicited Electronic Messages Act for consent to be in writing. However, it is advisable to keep a record of verbal consent. If a complaint is ever laid the onus of proof of consent is on the sender of the message.
Q: Is it considered spam if we run a campaign encouraging existing customers to email a friend?

A: Friend get friend campaigns usually encourage subscribers to provide the name and email address of a friend who is sent and emailed by the company or promoter encouraging them to opt-in/register. In this case if the company/promoter contacts the ‘friend’ it is spam because the message is unsolicited.

Q: Can we include two tick boxes for consent – one agreeing to receive messages from our organisation/client and one for agreeing to receive promotional material from third parties?

A: If the customer ticked the box saying that they agreed to receive promotional material from third parties then it would not breach the Act to send them such material.

Q: What if a business has a really long name – what are the rules around reducing the business name?

A: The abbreviated use of a companies name is suitable, as long as the abbreviation would allow the recipient to clearly and accurately identify the company i.e. organisations such as TVNZ and VTNZ for example would be fine.

A: What about SMS systems that cannot accept replies. Can we ask them to unsubscribe by email instead?

Q: No. The unsubscribe facility must allow the recipient to respond to the sender using the same method of communication as the original electronic message. If you send commercial text messages, you must arrange an unsubscribe facility through text messaging, free of charge.

Q: Is a confirmation email saying ‘thank-you for unsubscribing’ okay?

A: Yes. If it is within 5 days!

Q: Do I need to have an unsubscribe ‘button’ or some other flash unsubscribe facility?

A: No. A clear instruction in the subject line will suffice
As discussed before the Act stipulates that your unsubscribe function just needs to be
Clear and conspicuous
Free
Functional for at least 30 days after the original message is sent
Able to be sent using the same method of communications that was used to send the original message.

Q: When does the five working days commence (in which you must honour the unsubscribe request)?

A: The clock starts the day after the recipient used the unsubscribe facility. Therefore you need to ensure that you have a system whereby all unsubscribe requests are actioned within the 5 working day period.

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