Anti-Spam Legislation
Anti-Spam law countdown
New Zealand businesses should be preparing themselves for the ‘Unsolicited Electronic Messages Act 2007’, which takes effect on 5 September.
The UEM Act defines spam as ‘unsolicited, commercial, electronic messages’, and sets out the rules for sending commercial electronic messages legitimately.
The Department of Internal Affairs (DIA) has established an Anti-Spam Unit to investigate complaints about spam from the public and act against spammers in New Zealand who are deliberately flouting the law.
Anti-Spam Unit manager, Joe Stewart, says that 99 percent of spam originates from overseas so it is important to note that the UEM Act will not stop spam.
“What it does enable us to do is to prevent New Zealand becoming a ‘spammer haven’ by allowing us to fight New Zealand-sourced spam. The Act also allows us to enter into international agreements to share information and pursue cross-border complaints.
“The legislation is just part of a range of undertakings to combat spam. We will also be actively involved in promoting spam education and awareness, encouraging industry liaison and monitoring emerging technologies,” says Joe.
The penalties for breaching the UEM Act range from formal warnings to infringement notices and court actions (with a maximum fine of $500,000 for an organisation or $200,000 for an individual). A ‘spammer’ could also be ordered to pay the victims compensation up to the amount of loss suffered, or damages up to the amount of profit that was made as a result of sending the spam.
What do you need to do?
When sending a commercial electronic message you must: have the consent of the recipient, clearly identify the sender and the sender’s contact details, and include a free unsubscribe facility.
There are three types of consent outlined in the Act – express, inferred and deemed. Express consent is a direct indication that the recipient wishes to receive messages and encompasses situations such as ticking a box on a website or a phone/face-to-face conversation.
Inferred consent is when the recipient hasn’t directly instructed you to send them a message, but there is a reasonable expectation that messages will be sent. For example, the recipient provided their email address when purchasing goods and services in the general expectation that there will be a follow-up communication.
Deemed consent covers situations when someone has conspicuously published their work related electronic address or mobile number (i.e. on a website, brochure or magazine). However any message sent must still be relevant to the recipient’s business.
This means that existing client address lists and databases will need to be checked to ensure each client has consented to receiving electronic messages. Under the Act if enforcement action is taken the onus is on the sender of a message to prove consent, whether it be express, inferred or deemed.
For those who would like to know more about the requirements of the UEM Act, the Anti-Spam Unit is planning a series of practical seminars nationwide. Dates for these will be publicised shortly.
More detailed information, including examples, is also provided in the ‘Unsolicited Electronic Messages Act 2007 Guide for businesses’. The guide is available at www.antispam.govt.nz on the ‘Business info’ page.
However it is important to note that the guide provides general advice only. If the answer to your query is unclear you should seek legal advice, or contact the Anti-Spam Unit at info@antispam.govt.nz
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