Aksentijevic v Department of Internal Affairs
| Jurisdiction | New Zealand |
| Judge | Woodhouse J |
| Judgment Date | 22 February 2016 |
| Neutral Citation | [2016] NZHC 226 |
| Docket Number | CIV-2015-404-129 |
| Court | High Court |
| Date | 22 February 2016 |
Under The District Courts Act 1947
In the Matter of an appeal to the High Court against the decision of the Manukau District Court
[2016] NZHC 226
CIV-2015-404-129
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
Appeal against a District Court conviction and sentence of $12,000 on charges under s9 Unsolicited Electronic Messages Act 2007 (UEMA) (unsolicited commercial electronic messages must not be sent), s10 UEMA (commercial electronic messages must include accurate sender information) and s11 UEMA (commercial electronic messages must contain functional unsubscribe facility) — 2,230 emails were sent to 439 unique email addresses — the messages did not sell a product but linked through to a website which contained an advertisement for a game developed by the appellant — the appellant claimed that consent to receiving the messages had arisen from his membership of a forum — consideration of approach to calculating penalty under s45 UEMA (pecuniary penalties for civil liability event) — use of a civil infringement notice under s24 UEMA — whether the messages were commercial electronic messages pursuant to s6(a)(i) UEMA (markets or promotes goods) and s6(a)(iii) UEMA (provides a link, or directs a recipient, to a message that markets or promotes a good…) — whether the messages were unsolicited — whether a link to a site provided contact information for the purposes of s10 UEMA — whether the appellant did not have to provide an unsubscribe facility because he did not own any business, was not involved in any kind of commerce, did not have any customers or subscribers — whether the penalty was too high.
Appellant in person
D J Dufty and T M Badland for the Respondent
JUDGMENT OF Woodhouse J
Mr Zeljko Aksentijevic has appealed against a decision in which he was found to have breached ss 9, 10 and 11 of the Unsolicited Electronic Messages Act 2007 (the Act). He has also appealed against a penalty of $12,000 imposed under s 45. 1
Section 45 of the Act provides that the Court may order a person to pay a pecuniary penalty for commission of what is called “a civil liability event”. The maximum penalty is $200,000. A civil liability event is defined in s 18 as breach of one or more of ss 9(1), 10, 11(1) and two other sections which are not relevant.
Section 49 provides that proceedings by the Department alleging “a civil liability event” and seeking a penalty are civil proceedings. The standard of proof is the civil standard – the balance of probabilities. The other usual rules of Court, rules of evidence and procedure for civil proceedings also apply.
Section 9 is as follows:
9 Unsolicited commercial electronic messages must not be sent
(1) A person must not send, or cause to be sent, an unsolicited commercial electronic message that has a New Zealand link.
(2) If a recipient uses an unsubscribe facility in accordance with section 11(1)(a), the recipient's consent to receiving a commercial electronic message from the sender is deemed to have been withdrawn with effect from the day that is 5 working days after the day on which the unsubscribe facility was used.
(3) A person who contends that a recipient consented to receiving a commercial electronic message has the onus of proof in relation to that matter.
Section 10 relevantly provides that a person must not send a commercial electronic message unless the message “clearly and accurately identifies the person”
who authorised the sending of the message and other information. The relevant detail is discussed further belowSection 11 relevantly provides that a person must not send a commercial electronic message unless there is what is described as a “functional unsubscribe facility”. The details of this provision are not relevant because Mr Aksentijevic accepts that there was no functional unsubscribe facility included in the messages in question. He says it was not required.
“Electronic message” is defined in s 5. Mr Aksentijevic does not dispute that all of the messages in question were electronic messages. A central issue is whether they were commercial electronic messages. A “commercial electronic message” is defined in s 6 as follows:
6 Meaning of commercial electronic message
For the purposes of this Act, commercial electronic message—
(a) means an electronic message that—
(i) markets or promotes—
(A) goods; or
(B) services; or
(C) land; or
(D) an interest in land; or
(E) a business or investment opportunity; or
(ii) assists or enables a person to obtain dishonestly a financial advantage or gain from another person; or
(iii) provides a link, or directs a recipient, to a message that does 1 or more of the things listed in subparagraphs (i) and (ii); but
(b) does not include an electronic message that—
(i) provides a quote or estimate for the supply of goods or services if that quote or estimate was requested by the recipient; or
(ii) facilitates, completes, or confirms a commercial transaction that the recipient previously agreed to enter into with the person who authorised the sending of the message; or
(iii) provides warranty information, product recall information, or safety or security information about goods or services used or purchased by the recipient; or
(iv) provides notification of factual information about a subscription, membership, account, loan, or similar relationship involving the ongoing purchase or use by the recipient of goods or services offered by the person who authorised the sending of the message, or the recipients ongoing subscription, membership, account, loan, or similar relationship; or
(v) provides information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
(vi) delivers goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously entered into with the person who authorised the sending of the message; or
(vii) provides the recipient with information about goods or services offered or supplied by—
(A) a government body; or
(B) a court or tribunal; or
(viii) has any other purpose set out in the regulations.
Whether the messages were unsolicited is another central issue. There are two relevant definitions in s 4, as follows:
unsolicited commercial electronic message means a commercial electronic message that the recipient has not consented to receiving.
consented to receiving—
(a) means—
(i) express consent, whether given by the relevant electronic address-holder or any other person who uses the relevant electronic address; or
(ii) consent that can reasonably be inferred from—
(A) the conduct and the business and other relationships of the persons concerned; and
(B) any other circumstances specified in the regulations; or
(iii) consent that is deemed to have been given when the following circumstances apply:
(A) an electronic address has been conspicuously published by a person in a business or official capacity; and
(B) the publication of the address is not accompanied by a statement to the effect that the relevant electronic address-holder does not want to receive unsolicited electronic messages at that electronic address; and
(C) the message sent to that address is relevant to the business, role, functions, or duties of the person in a business or official capacity; but
(b) does not include the circumstances specified in the regulations from which consent cannot be inferred. 2
Section 3 defines the purposes of the Act as follows:
3 Purposes of this Act
The purposes of this Act are to—
(a) prohibit unsolicited commercial electronic messages with a New Zealand link from being sent, in order to—
(i) promote a safer and more secure environment for the use of information and communications technologies in New Zealand; and
(ii) reduce impediments to the uptake and effective use of information and communications technologies by businesses and the wider community in New Zealand; and
(iii) reduce the costs to businesses and the wider community that arise from unsolicited commercial electronic messages; and
(b) require commercial electronic messages to include accurate information about the person who authorised the sending of the message and a functional unsubscribe facility in order to enable the recipient to instruct the sender that no further messages are to be sent to the recipient; and
(c) prohibit address-harvesting software or a harvested-address list from being used in connection with sending unsolicited commercial electronic messages in contravention of this Act; and
(d) deter people from using information and communications technologies inappropriately.
In 2012 the respondent received complaints from various individuals about electronic messages they said they had received. Twenty eight of these messages contained a link to a web page called “Google Play”. This is a website run by Google for people to shop for and download computer applications (apps), including game apps, and other entertainment items. Google Play was described by the respondent's investigator, Mr Peter Merrigan, as follows:
Google Play has a developer's console which is open to all Android application developers. Once registered, developers can submit and manage their applications and create a portfolio...
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