Get Your Business Compliant

In this article I will provide my views on some of the legislation (Unsolicited Electronic Messages Act 2007) compliance tasks and information.

My experience in the email marketing and technology sector has revealed that most businesses mail out to customer and prospect email lists so it is important to understand how the new law will impact on this activity from hereon in.

The Unsolicited Electronic Messages Act 2007

The Act allows six months for individuals and businesses to ensure their email processes and systems are compliant. That is not a lot time to turn processes around in my humble opinion.  I envisage the process of compliance taking most businesses a minimum of three months  and that suggested time fame is to ensure the basic compliance requirements are achieved.

Businesses might also need to upgrade systems to assist with compliance requirements including keeping records of subscribers consenting to receive email and processing unsubscribe requests.  The implementation of upgrading systems may stretch the three month timeframe out further.

The Act defines the prohibiting of sending "commercial electronic messages" unless the recipient has consented to receive the messages BEFORE a message is sent.

The term “commercial electronic message” includes an electronic message (an email, text, instant message, but not a voice call or facsimile) that markets or promotes goods, services, land, or business opportunities.  The law will apply to messages with links to another message or website that is commercial.

The sender must be able to prove that consent has been given by the recipient.  The consent can either be:

  • “express” - this form of consent can be given by the person responsible for the electronic address (or by any person who uses that address);
  • “inferred” - from the conduct, business and other relationships of the persons concerned.  The Bill is not specific as to when the consent can be reasonably “inferred” and when it cannot.  However, regulations may be introduced which provide further guidance on where to draw the line; and
  • “deemed” - this applies where a person’s electronic address is published in an official or business capacity.  For example, an email address on a business website will be “deemed” consent so long as the message sent is relevant to the business or role of the person responsible for that address.  However, there will be no deemed consent if the website expressly states that the person responsible for the address does not wish to receive unsolicited electronic messages.

All email messages will also need to include an unsubscribe facility (more on that latter) and valid up-to-date contact details of the person/business who authorised the sending of the email.

So in summary you need the following functions operational for an email that is ‘commercial’:

  • Consent of the recipient before sending the email,
  • Unsubscribe facility within the email,
  • Up-to-date contact details of the person/business who authorised the sending of the email.

There are a few more rules including an un-subscription request  to be processed  5 business days after receiving the unsubscribe request.

Plus it is illegal to use address harvesting software (send me an email if you want to know what this is about).

Will the Act Hurt Spammers?

The new Anti-SPAM Act will not stop the top spammers of this world who send out millions of emails per day. An interesting fact is there are 200 top spammers in the world who create 80% of the spam. The bulk of them are based within the USA. An even more amazing fact is that some of them send spam without breaching the CAN-SPAM Act!

Spammers can earn considerable sums of money and its not uncommon for even an amateur spammer to earn thousands a week. Now what that tells me is that a reasonable amount of people buy off spammers so we are not going to stop spam until we can educate people not to buy their products.

All the Act will do is annoy ethical and law abiding businesses but the New Zealand government must be seen to be helping with the war on spam.

Does The Act Affect your Business?

Yes. All email and text messages that promote products and/or services, land, investment and business opportunities are considered commercial. There are exceptions such as supplying quotes, transaction confirmation emails, and account queries.

The fines for breaching the law are considerable for small and medium business but the worst would be adverse publicity of being fined under the Anti-SPAM law (Unsolicited Electronic Messages Act 2007) which may give the public an instant and hard-to-remove perception that you and your business are spamming.

My Suggestion

Below is a business decision flow that you can use whenever you think about sending someone a commercial message. Make sure you have consent and an unsubscribe facility and up-to-date valid contact details of the person/business who authorised the sending on the email.

Basic Decision flow:

  1. Is the email commercial in nature? Does the message content contain any promotional material?
  2. If so do we have consent? Yes?
  3. Is there an unsubscribe link in the email and accurate sender information in the message?

The hard part is for any business that has more than a few staff members is to identify who sending commercial emails.

Who in Your Business is Sending Emails?

If I asked you if you knew exactly how many emails your customers and prospects receive from your business per month would you know?

Each department of your business may be sending emails to your customers and every type of email communication needs to be assessed for compliance.

The task here is to identify every type of email you send to your clients as a Business and review the content.  Look for:

  1. Any promotional content within the message that gets sent to your clients. If you find that type of content then you may need to get permission from your client unless of course you have done so already (I hear a Tui Ad!).
  2. Does the email contain contact details for your business and who authorised the sending of that message? If not you will need to add this information as the law will require that the message clearly identifies the person who authorises sending the message. Even if the message is not promotional in its content this is still good practice to inform the recipient.
  3. If the email is sent to a mailing list say your monthly newsletter then does it provide an unsubscribe link or information on how to unsubscribe within the content. The bill is very vague on this requirement. All it seems to state is:
    "unless the sender and the receiver agree otherwise, all messages must contain a functional unsubscribe facility that allows the recipient (at no cost) to inform the sender that no unsolicited electronic messages should be sent."
    To be safe I would add an unsubscribe link or unsubscribe statement within all these types of messages.
  4. Is there any automated systems within your business that send out emails? For example does your merchant system send out an automated receipt upon online payment? Does that system send out emails to clients or prospects?

Recently one client who told us that they found by accident an outdated promotion of a product (that they did not sell anymore) within a "receipt of transaction" email that was sent to the purchaser. The way they found out was a person rang them and wanted to take advantage of the "special deal" in the email!

Once you have identified all the commercial emails sent via your business review the content and check if any mention of promoting goods and/or services is present. If so decide if it should be within the content or not. If you do believe the promotional content is required you may need to seek consent from the recipient.

Now that you have located all the commercial emails flowing out of your business its now time to get consent from the recipients (I assume that at this stage you have not really looked at prior consent for your existing contacts who you send commercial email to).

Get Consent

Most businesses will have a list paper based or electronic of their clients and prospects details which have taken years of hard work to acquire. It would be ridiculous to suggest to any business to dump that current list and start again – yeah right!

So a good starting place is to add an unsubscribe link to all your emails so you give the receiver a chance to “unsubscribe” from communication with you. This way you can work on your existing customer/prospect data and show that you have attempted to comply with the law. This approach may even prove inference of consent but don’t quote me on that as there are many variables to the 3 types of consent.

Another side benefit though scary to a lot of businesses is that you will probably reduce your contact database down by up to 80%. How we reached that number is a combination of experience from our own customers and the well known statistic that every year 30% of your contact database will contain dead email addresses through a number of reasons but mostly people just abandoning their current email provider such as Hotmail etc…But the remainder of your contacts should be treated as gold as they are still interested in your business!

The Unsubscribe Function

Okay so now you think it’s a good idea to add an un-subscribe function to all your email content. The next step is to work out the process for unsubscribing a contact from your email/text communication. For our clients sending to all their contacts at once its simple as our system injects an unsubscribe link to all outbound emails that when clicked will automatically un-subscribe the contact.

But that doesn’t cover the 1-to-1 emails that you send from your computers email application every day. The Act states that you have 5 business days for you to honour the contacts unsubscribe request. Without automation you have to rely on the dreaded and often unreliable human species to do the job. So how can you as a business attempt to create a reliable un-subscription process within your business?

The first step is to create an email address that is not directly “owned” by one staff member – for example “bob@domain.com” or “jayne@domain.com”. If the person leaves your business then there could be a reasonable chance that when you clean up their accounts you will remove their mail box as well. That means all contacts who send Bob or Jayne an unsubscribe email will get a nice bounce message back stating the person does not exist anymore which is not a great PR exercise.

Create an email address that is generic such as “unsubscribe@domain.com”. 

Next work out who will receive the emails that are sent to “unsubscribe@doamin.com”. Do not rely on one person to receive the emails! Remember you have only 5 business days to honour the contacts un-subscribe request and if that staff member goes on leave for a month you had better of remembered to check their mailbox every day. Set the unsubscribe email to be sent to at least two staff members to make sure that the request will get through.

The next step is to understand who within your business needs to know this information. The sticky point here is that the contact has requested to unsubscribe but from what? The person may only want to unsubscribe from your monthly newsletter but still receive your weekly “Best Deals” email. If the un-subscription process is not automated then you as a business will need to work out what the customer is un-subscribing from.

An interesting point here is that the Act defines that the unsubscribe facility must be provided at no cost. That’s going to hurt the text messaging market where the cost of communicating with a receiver is costly.

There are two ways I see how you can deal with this and the options are focused around how busy you are and if how much you wants the customers patronage. Here are the options:

  1. Blanket unsubscribe – this means when a contact sends an unsubscribe request you as a business remove or flag their record as “never send this person an email unless they communicate first”. This is by far the easiest and most efficient way for a business to deal with an unsubscribe request. The assumption here is that if the contact only wanted to unsubscribe from your monthly newsletter but still wanted to receive the “Best Deals” weekly email they will contact you.
  2. Selective unsubscribe – this is the option where effort from you is needed. If you have a number of emails messages that you sent out such as the monthly newsletter and weekly specials you need to ask the contact what they want to unsubscribe from. Now if you think about it this is a great excuse to talk with the contact! By asking the contact what they want to unsubscribe from you have the chance to talk to them – maybe they didn’t know about the weekly “Best Deals” email – maybe they would like to receive that instead of the monthly newsletter. See what I mean? You have a fantastic opportunity to talk to the contact!

The Unsubscribe Log Book

Now when unsubscribing a contact I recommend that you store the following details for each un-subscription request in a log book:

    • Their email address (and any other information you have about them – remember the Privacy Act here),
    • A copy of their un-subscribe request and the date you received the request (email, phone, fax etc...),
    • The date and time you un-subscribed them from your lists,
    • The date and time you sent them a confirmation email of un-subscription (optional)

By keeping the log book you now have some proof of your efforts to honour their request which is good just in case someone has enough time and money to take you to court over this.

I also recommend that you send them an email back stating that they have been unsubscribed from your mailing lists as this shows them you are serious about their request.

And of course the log book can be your central list that all staff members can use to update their own mailing lists.

Contact Information in Your Emails

Another important requirement is that all commercial emails must contain the contact details of the person/business who authorised the sending of the email.

That’s fair enough since if you really want their business you would provide information on how to contact you!
I recommend you add the contact details to your signature now so its automatically added in for each email you create.

In Summary

The Unsolicited Electronic Messages Act 2007 in my opinion had to be passed into law so the New Zealand government can be seen to be fighting the “war on SPAM”. In essence the Act will not touch the major spammers who are responsible for over 80% of the worlds SPAM and the bulk of which are based in the USA.

What the Act will do is create confusion and annoyance with the ethical businesses trying to survive in the New Zealand market place.

The requirements of the Act are not too hard to implement especially if you use the information in this article. When the Bill first came out there was also a concept of a promotional message which thanks to some common sense was removed after a recommendation from the select committee responsible for the review of the Bill.

Questions?

Our clients have many questions about the Act and I know you will too. In order to help our clients and you we have created (with help from one of our business partners who are a leading law firm in New Zealand) a FAQ on the common questions businesses will ask such as “does the unsubscribe link really have to be in all emails?”. If you would like a copy please contact me and I will send it to you.

If you have any questions about the Act or you need more information on how to get your emails systems creating compliant emails please contact me.

Contact us today! info@mobilizemail.com  www.mobilizemail.com

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