Are you complying with the provisions
of the new anti Spam legislation?
An article kindly provided by Simpson Grierson
The Unsolicited Electronic Messages Act 2007 (Spam Act) came into force on 5 September, 2007. The Spam Act regulates the sending of commercial electronic messages and represents New Zealand's contribution to a global movement towards preventing spam. The Government believes that this legislation will reduce:
• impediments to the uptake and effective use of information and communications
technologies; and
• the cost to businesses and the wider community that arises from spam.
The Spam Act imposes various requirements on senders of electronic messages that are likely to have a significant impact on many organisations (particularly organisations engaged in direct marketing).
Is your business compliant?
What Kinds Of Electronic Messages Are Captured?
The Spam Act applies to "commercial electronic messages". "Electronic messages" are defined broadly as messages sent using a telecommunications service to an electronic address. This definition captures:
• information in any form or combination of forms (including text, data, sound and images);
and
• information sent to any address used in connection with an email account, an instant messaging account, a telephone account, or similar account.
Voice calls (using a standard telephone service or VOIP) and facsimiles are expressly excluded and are therefore not subject to the requirements of the Spam Act.
An "electronic message" will be deemed to be a "commercial electronic message" when it:
• markets or promotes goods, services, land, an interest in land or a business opportunity;
or
• assists or enables a person to obtain dishonestly a financial advantage or gain from another person; or
• provides a link, or directs a recipient, to a message that does one of the above things.
There are however exceptions to this in certain circumstances (for example, if the message provides a quote or estimate for the supply of goods or services, where that quote or estimate was requested by the recipient).
What Prohibitions/Requirements Does The Spam Act Introduce?
In summary, the Spam Act:
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• prohibits the sending of commercial electronic messages with a New Zealand link (whether in the form of email, text message or instant message), unless the receiver has consented to receiving the message;
• requires any commercial electronic messages sent to include a functional unsubscribe facility (being a facility that allows the recipient to notify the sender that no further commercial electronic messages should be sent to that electronic address). This facility must allow the recipient to respond to the sender using the same method of communication that was used to send the initial message (eg unsubscribing by replying to the e mail received) and must not impose any cost on the recipient when used;
• requires any commercial electronic messages sent to include information which enables the recipient to accurately identify the person who authorised the sending of the message and to readily contact that person; and
• prohibits the use of address-harvesting software or a harvested-address list in connection with, or with the intention of, sending unsolicited commercial electronic messages in contravention of the Spam Act. Address-harvesting software is software that is capable of searching the internet for electronic addresses and collecting, compiling, capturing, or otherwise harvesting those electronic addresses (ie address-harvesting software is used to create a harvested-address list).
Penalties For A Breach Of The Spam Act
The Spam Act sets up a civil penalty regime where a Government enforcement department or an individual "victim" may take action against another person in respect of a breach of the Spam Act.
The enforcement department may do one of the following in respect of a breach:
• issue a formal warning to the perpetrator;
• issue a contravention notice to the perpetrator specifying a penalty to be paid (as a fine);
• accept an enforceable undertaking from the perpetrator and, if that undertaking is
subsequently breached, seek an order from the High Court in respect of that breach;
• seek a performance injunction or restraining injunction from the High Court; and
• make an application to the High Court for a pecuniary penalty and/or for compensation or damages on behalf of another person (penalties of up to $200,000 for an individual and $500,000 for an organisation may be ordered).
The Spam Act also makes provision for the enforcement department to apply to the District Court for a search warrant (which may include authorisation to seize property) where it is suspected that there has been, or will be, a breach of the Spam Act.
An individual that claims to be the victim of another person's breach of the Spam Act may summarily seek an injunction from the High Court and/or make an application to the High Court for compensation or damages.
Practical Considerations To Ensure Compliance
The main issue for business organisations to deal with prior to the Spam Act coming into force is that of obtaining the consent of email recipients to receiving commercial electronic messages. The Spam Act states that "consent" can be:
• express; or
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• inferred from the conduct and the business and other relationships of the persons
concerned; or
• deemed where:
(i) the recipient's electronic address has been published by a person in a business or official capacity; and
(ii) the publication of the address is not accompanied by a "no spam" statement
(similar to a "no circulars" statement on a letter box); and
(iii) the message sent to that address is relevant to the recipient's business, role,
functions or duties.
In practice, this means that businesses will need to check their marketing lists to ensure that each intended recipient has provided "consent" in one of the forms referred to above. Records of documents evidencing "consent" should also be kept. For organisations heavily involved in direct marketing, this may mean that certain employees will need to be allocated the responsibility of maintaining the marketing lists, which will include removing persons from that list when they notify
they wish to no longer receive messages.
Organisations will also need to configure all outgoing commercial electronic messages so that they:
• contain a functional unsubscribe facility; and
• clearly disclose the organisation's identity and provide contact details for the organisation.
As far as marketing alternatives are concerned, businesses may now wish to reconsider using faxes or telemarketing to communicate with potential customers (as these forms of communication are not caught by the Spam Act).
Whether the Spam Act will actually have any real impact on the levels of spam received in New Zealand remains to be seen, as the majority of spam originates from overseas. The Government does recognise this shortcoming, however it believes that the Spam Act will enable New Zealand to enter into international agreements concerning international enforcement of anti-spam legislation,
sharing of information between national enforcement agencies, and the pursuit of cross-border complaints concerning spam. In any event, if New Zealand businesses have not already set in place procedures to ensure compliance with the Spam Act, the time to do so is now. A well planned compliance strategy is critical.
Key Contacts
Simon Vannini Ph +64 9 977 5186 simon.vannini@simpsongrierson.com
Matt Smith Ph +64 9 977 5016 matt.smith@simpsongrierson.com
Note: The information provided in this article is intended to provide general information only. This information is
not intended to constitute expert or professional advice and should not be relied upon as such. Specialist legal
advice should always be sought for your particular circumstances.
May 2007
© Simpson Grierson
