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NZ Anti Spam Act: Sales People Will Hate It

I had an irate sales manager ring me up today wanting to confirm with me something she had heard on the sales grapevine.

They had just won a great opportunity with a large organisation in New Zealand. A department within the organisation had signed up for a deal to be supplied with Product X from the sales manager’s company. The department’s boss was so impressed by the deal that he instructed the sales manager to tell all the other “Heads of Departments” within the organisation how happy he was and that they all should sign up.

What the sales manager was irate about is that she heard after the 5th of September it will be illegal to do that!

Yes you heard it – the head of the department who signed the deal cannot provide consent for another person within the organisation. There are some exceptions around this and I needed to get the DIA’s input. See below for their response.

So you maybe asking “Whats the problem? Just tell the head of department to send the email himself”.

Good point but it’s not that easy in sales sometimes. You would be foolish to leave such an important opportunity to sell throughout the entire organisation to a staff member you cannot control and may forget to send the email.

DIA Response

We have had an opportunity to consider your question.

It appears as though the scenario is similar to that of viral marketing, or friend get friend campaigns, where a person gives consent to a third party company to send commercial electronic messages to a friend (or in this case a business associate) relying on “inferred consent”.

In short, the answer to your question is no, the work associate cannot provide consent for another work associate.

A friend can send an electronic message (whether commercial or not) to another friend, relying on the relationship between the two parties. This is an example of “inferred consent”. However, one friend cannot consent of behalf of another friend for a third party to send the other friend commercial electronic messages. In this case, it is one work associate giving the consent of another work associate.

Depending on the work relationships within your client’s company, she would be able to on-send the newsletter herself, relying on “inferred consent”. She cannot advise your company to send it on her behalf.

It could be possible for an authorised person (such as a General Manager, Chief Executive Officer etc) of an organisation to give express consent to send commercial electronic messages to the organisation’s employees using the organisation’s electronic addresses. The authorised person could be considered as the relevant electronic address holder as they would be responsible for the company infrastructure, such as the actual computers; company website; domain name; email address; bandwidth etc. The company employee would be any other person who uses that electronic address. In the case of “sales reps” I am assuming that the company owns any computers and is responsible for any associated communication costs.

The commercial electronic message would need to comply with the Act. It would need to identify the sender, and in some cases, provide an unsubscribe facility. The question arises whether the company employee could unsubscribe to a commercial electronic message which was authorised by the company’s authorised person. This requirement can be voided if the requirement for a functional unsubscribe facility is inconsistent with the terms of the contract, arrangement or understanding between the person who authorised the sending of the principal message and the recipient.

Below is another email sent from DIA just after the initial one above providing some helpful feedback about how the sales manager could in fact spread the word without breaking the law. These guys are good (DIA) and I am still to this day very impressed with the response rate to my questions and the amount of detail they provide.

For further clarification, a recipient, in relation to the sending of an electronic message to an electronic address, means the relevant electronic address holder and any other person who uses that electronic address. A relevant electronic address holder means the person who is responsible for the relevant electronic address.

Express consent is consent, whether given by the relevant electronic address holder or any other person who uses the relevant electronic address.

Normally, a person cannot give consent for someone else. In most cases, if you have the consent to send commercial electronic messages to one single person at a company, it is not a licence to send commercial electronic messages to other personnel within the same company.

However, the CEO, director (or someone who has the ability to authorise such a request) can be considered as the person who is responsible for the relevant electronic addressbeing, and can therefore advise a third party company that it can send messages to any employee the authorised person nominates, effectively giving the third party company “express consent”.

With that express consent, the third party provider could directly send the messages to the nominated electronic addresses. Note, for this to apply, the electronic addresses should be “work” addresses effectively “owned” by the authorised person’s company.

The second option is to rely on “inferred consent”. The work associate could receive your newsletter, and depending on the work environment, could choose to on send the newsletter to other associates if she felt that the business relationship allowed her to send such messages.

Read more on Anti Span Compliance NZ

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