New Zealand Unsolicited Electronic Messages Bill
March 2006
Proposed anti-spam legislation – a marketer’s minefield
Helen Bowie - Partner - Chapman Tripp
The prospect of reducing the ever-increasing barrage of spam is appealing. But underneath the proposed legislation designed to help combat spam is a potential minefield for marketers.
Marketing lists are sometimes voluminous. They can require constant attention to keep them up to date. If the Unsolicited Electronic Messages Bill is enacted, marketing lists will have to be reconsidered with key questions in mind. Will consents of persons on the list be required before emailed marketing messages can be sent to them? If so, have those consents already been obtained? If not already obtained, how should the consents be obtained?
Sending "unsolicited commercial electronic messages" will breach the proposed legislation
If the Unsolicited Electronic Messages Bill is enacted, it will be a breach to send "unsolicited commercial electronic messages". This includes electronic messages (e-mails, texts, instant messages, but not voice calls):
- that have the primary purpose of marketing or promoting goods, services, land or business opportunities; and
- that the recipient has not consented to receive.
For marketers, the challenge will be to identify which messages could potentially be "unsolicited commercial electronic messages". Before sending these messages, marketers will have to ensure that the consent of the receiving party is obtained.
When will consents of recipients be required?
Making the call on whether or not consents are required will not always be easy. The Bill makes a distinction between the "commercial electronic messages" (for which prior consents of recipients are required) and "promotional electronic messages" (where obtaining prior consents is not required).
- "Promotional electronic messages" have as their primary purpose the promotion or marketing of an organisation, its aims or ideals. This can be contrasted with the "commercial electronic messages" which have as their primary purpose the marketing or promotion of goods, services, land or business opportunities.
- Messages will often have two purposes – for example, they may promote the organisation as well as its products. Marketers will need to identify which is the primary purpose. In this example, prior consent will be required if the primary purpose is promoting the product.
Having ascertained whether consent is required, the next question is whether consent has already been obtained, and if not, how it will be obtained from the proposed recipient of the electronic message.
Consent of the recipient can either be:
- express. Consent can be expressly given by the person responsible for the electronic address (or any other person who uses that address); or
- inferred. Consent can be reasonably inferred from conduct and business and other relationships of the persons concerned. So for example, it can probably be reasonably inferred that a long-standing client of certain services consents to receiving an e-mail which markets and promotes the same or similar services. However, what if the proposed recipient is not a long-standing client, but instead a business contact who has attended just one previous marketing event regarding the services the subject of the e-mail? Can consent be reasonably inferred from that relationship? What if the proposed recipient attended the event three years ago? The short point is that a line must be drawn between the situation where consent can be reasonably inferred and where it cannot. The Bill in its current form does not draw the line sufficiently clearly to enable marketers to make quick assessments. The Bill does however make reference to the making of regulations which may specify circumstances in which consent may be inferred; or
- deemed. Consent will be deemed where the electronic address has been conspicuously published by a person in a business or official capacity. So, for example, an e-mail address on a business website is deemed to provide consent so long as the message sent is relevant to the business or role of the person responsible for that address. The situation is different however if the address is accompanied by a statement that the person responsible for the address does not wish to receive unsolicited electronic messages.
To circumvent the "consent" requirements that apply for "commercial electronic messages", marketers could send only "promotional electronic messages" (these are the ones where the primary purpose is the promotion or marketing of the organisation, its aims or ideals). It is not necessary to obtain consents before sending these messages.
However, before sending a promotional electronic message, care must be taken to ensure that the proposed recipient has not sent the marketer a message to the effect that the recipient does not want to receive further promotional electronic messages. This is called "opting out".
Some other requirements
The Bill provides that no commercial electronic messages or promotional electronic messages should be sent without a message which clearly and accurately identifies the person who authorises sending of the message.
In addition, unless the sender and recipient agree otherwise, all messages must contain functional "unsubscribe" facilities that allow the recipient to instruct the sender that no further such messages should be send to the recipient’s electronic address.
There are also prohibitions in the Bill on the acquisition and use of address-harvesting software and electronic address lists produced using that software.
Consequences of breach
The proposed legislation needs some clear tests that can be applied easily, efficiently and with certainty to enable marketers to ensure that they do not breach the legislation in sending messages. Under the current Bill, a breach of this legislation can occur with the sending of just one e-mail (the sending of volumes of unsolicited messages is not a pre-requisite to breach).
Breach can have a range of consequences from formal warnings, to injunctions and penalties (up to $200,000 (for individuals) and $500,000 (for organisations)). In setting the amount of a penalty, the High Court will take into account the number of electronic messages sent.
Submissions due 31 March 2006
The Bill is currently before Select Committee. Submissions are due by 31 March 2006.
For the assistance in making of submissions or any other information about the Bill, please contact Helen Bowie (T 04 498 4921).
And incidentally, in including the paragraph immediately above, we have made this into an email which falls into the definition a "commercial electronic message". If the Bill was enacted, we would need to ensure that your consent (express, inferred or deemed) was obtained before sending this newsletter to you.
Contacts
For more information on any of the topics in this email, please contact your usual Chapman Tripp contact or: Helen Bowie (T 04 498 4921)
Every effort has been made to ensure accuracy in this document. However, it is necessarily generalised and readers are urged to seek specific advice on particular matters and not rely solely on this document.
Please contact us at governmentalertservice@chapmantripp.com if you would like further information on any of the topics in this bulletin.
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