By: N/A
Published: 10/08/2016
Anyone with an email account or phone knows the frustration of receiving spam. Spam is the email or text messages you receive from traders without having consented to receiving them. Although we see less spam in our inboxes these days due to spam filters, law-makers have also got on board with legislation to combat the problem.
 
The Unsolicited Electronic Messages Act 2007 deals with spam in New Zealand. This Act prohibits the sending of unsolicited commercial electronic messages. There are some limitations to the Act's coverage. The Act only applies to electronic commercial messages that market or promote goods, services, land or business opportunities, or direct the recipient to a place such as a website where a commercial transaction can take place. It does not extend to telemarketing.
 
If you are a business owner that sends marketing material via email or text, you need to ensure you are complying with your obligations under the Act.
 
Under the Act a person must not send any commercial electronic message that has a New Zealand link unless:
 
  1. The recipient has consented to receiving the message. There are three types of consent:
  1. Express consent is a direct indication from a person that they consent to receiving electronic messages from the sender, e.g. by completing a form (whether paper or on a website) or by phone conversation.
  2. Inferred consent is where the intended recipient has not directly indicated consent, but consent can be reasonably inferred from the relationship between the parties.
  3. Deemed consent is where a person conspicuously publishes their work-related electronic address (e.g. on a website) and this is not accompanied by a statement that the person does not want to receive unsolicited electronic messages at that address. Any messages sent to that address must relate to the recipient's work.
 Inferred consent and deemed consent are difficult to prove.

  1. The message includes information identifying the person who authorised the sending of the message and how the recipient can contact that person.
  1. The message contains a functional unsubscribe facility that allows the recipient (at no cost) to notify the sender that no further commercial electronic messages should be sent to the recipient's electronic address.
 
The Department of Internal Affairs has an Electronic Messaging Compliance Unit which investigates complaints about spam. The Unit has various powers available to it if the requirements under the Act are breached. These range from formal warnings to seeking damages or compensation from the Court of up to $200,000 for individuals and $500,000 for organisations.
 
Commercial electronic messages are a great marketing tool. If you want to use them while complying with the Act we recommend you take the following steps:
  1. Check your marketing lists to ensure you have consent to send commercial electronic messages to each intended recipient.
  2. Keep evidence of consent in order to prove that all recipients consented to receiving the electronic message. It is always better to obtain the recipient's express consent.
  3. Format your commercial electronic messages so they contain a functional unsubscribe function and clearly and accurately identify the identity and contact details of the sender.
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