Published: Mon, May 4th, 2015 by Arran Hunt

Anti-Spam Update - Unsolicited Electronic Messages Act 2007

Having been in effect for several years, there have now been a number of successful prosecutions under the Unsolicited Electronic Messages Act 2007 (the “Act”) resulting in fines of up to $500,000 to a company and $200,000 to an individual. It could be a good time to review whether your electronic messages are within the rules.

No Unsolicited commercial electronic messages

Under the Act you cannot send any unsolicited commercial electronic messages that have a New Zealand link. If you want to send a commercial electronic message with a New Zealand Link you must meet certain requirements.

What is an electronic message?

Under the Act, an electronic message is basically any message sent using a telecommunications service to an electronic address, for example, emails and text messages. Voice phone calls, whether live calls or voice recordings, and whether made over a landline or over the internet, such as with a VOIP phone or a service such as Skype, are not deemed to be electronic messages.

What is a New Zealand link?

To have a New Zealand link the electronic message also needs to be sent by a person or company in New Zealand, to a server in New Zealand, to a person or company in New Zealand or to any email address ending in .nz or phone number with a country code 64 (being New Zealand’s country code). It also includes messages that are misaddressed do not get delivered but it is reasonably likely that, if correctly addressed, it would have been accessed by a server, computer or device in New Zealand.

What makes a message unsolicited?

“Unsolicited” means that the address owner has not consented to the commercial electronic message. Consent may be expressly given or it can be inferred in several ways:

  1. From the conduct and the business and other relationships of the people concerned; and
  2. The electronic address has been conspicuously published by a person in a business or official capacity, without being accompanied by a statement that they do not wish to receive unsolicited electronic messages (acting as an electronic “no junk mail” letterbox sticker), and the message is relevant to the business or the role of the person it is being sent to.

What makes a message commercial?

A commercial message seeks to gain someone a financial advantage, whether by marketing or promoting goods and services, land, an interest in land, business or investment opportunity or even attempting to scam or swindle someone. Messages that are not trying to create new business (such as updating a customer on a project or notifying them of a free software upgrade) are not considered commercial messages. If you are writing to an unsubscribed recipient then be careful that the message avoids any commercial wording, including in your signature.

What are the requirements for an electronic commercial message with a New Zealand link?

There must be a functional unsubscribe facility. You must include an unsubscribe facility in every commercial message you send. It needs to be clear, at no cost to the recipient and remain functional for at least 30 days after the message is sent. It also needs to be in the same method as the original message, so while it is common to provide a web based “click here to unsubscribe” facility in emails, you also need to allow recipients to unsubscribe by email and make mention of it in the message.

The message must also contain accurate sender information. The message must clearly identify the person who authorised the message and it must also include accurate information about how the recipient can contact that person.

How about finding addresses online?

You may not harvest emails. Harvested emails are emails that have been collected by using address harvesting software which goes through the internet recording electronic addresses that are publicly available, such as listed on company webpages or on online forums. It does not matter whether you harvested the addresses or whether it was someone else. You may be required to show how you came to have that address, so if you receive a list of addresses from a third party it is important to confirm the source.

The Act does not prevent someone from manually copying addresses from the internet, or from other sources such as the back of a magazine but you must be able to prove you have the consent of the recipient as stated above.

Conclusion

The basics of the Act are:

  1. Don’t send unsolicited commercial messages;
  2. If you are going to send commercial electronic messages then make sure the message contains an unsubscribe facility and accurate sender information;
  3. Make sure you can prove you have the “consent” of the recipient to receive the email;
  4. Do not use harvested electronic addresses and if you purchase email lists make sure you able to verify that they are not harvested.

For assistance with IT Law contact our solicitor Arran Hunt at arranhunt@turnerhopkins.co.nz.

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