When we look at the court case over in Perth Australia against Clarity1 Pty Ltd (“Clarity1”) and the managing director, Mr Wayne Mansfield (“Mansfield”) who were both prosecuted for spamming we can see that Clarity1 argued that all emails contained an unsubscribe facility and of the 166,000 unsubscribe requests, all were acted upon by Clarity1. They also argued that if the recipients of the emails did not wish to utilise the unsubscribe facility they had obviously consented to receiving messages.
You may not know but Clarity1 and Mansfield were both found to be breaching the Australian Anti-SPAM act and fined 5.5 million dollars (AUSD)!
So in New Zealand if we apply this court case to our own NZ Unsolicited Electronic Messages Act (The NZ Act is very similar to the Australian Act) we can see that there is no chance of having the same reasoning when sending subscribers commercial emails without prior consent. The fact is you must have prior consent to send any commercial email to a person – full stop.
What’s even more terrifying was an additional challenge identified by our legal advisor Chapman Tripp in an article published on Mobilize Mail – extract below:
“There are a number of fishhooks in the new legislation that will need to be specifically addressed. The Act affects not only those who send the commercial electronic messages but also those who are directly or indirectly knowingly concerned in the sending of them. However, telecommunication service providers are not caught by the new legislation merely by the fact of their providing telecommunication services that enable the electronic messages to be sent.”
Do you understand how scary that is? Basically if you have more than 1 person in your business there must be processes in place to full monitor who is sending out commercial emails and who has approval to. So my understanding is that if your staff member sends a non compliant commercial email to someone you as the business owner are in breach of the Act.
Does that sound correct? Well, who is going to risk challenging the NZ government who will have much deeper pockets that you.
We have created a number of processes both manual and electronic that can help a business manage the control of commercial email going out the door.
Anti Spam Compliance Solutions For You & Your Business
To see how we can help you and your business comply with the NZ Anti-SPAM Act click here