New Anti-Spam Legislation

Author:Mr Daniel Gill
Profession:DLA Phillips Fox

The New Zealand Government has recently enacted legislation that will affect any organisation which uses email or text messages as a marketing tool. Substantial penalties apply to those who breach the new law. It will therefore be important for businesses to take action to ensure that their email practices and databases comply.

The Unsolicited Electronic Messages Act 2007 (Act) was passed on 27 February 2007. The Act is designed to regulate the proliferation of unsolicited electronic messages, commonly known as spam. The Act attempts to do this by:

Prohibiting commercial electronic messages from being sent to a person in New Zealand without that person's consent.

Requiring all commercial electronic messages to include accurate information about the person who authorised the sending of the message and a functional unsubscribe facility.

Restricting the supply, acquisition and use of address-harvesting software and any electronic address list produced using that software.

While the Act is unlikely to have much of an impact on the bulk of spam, which originates overseas, it may be seen as New Zealand doing its part in the international fight against spam. No more than ten per cent of spam comes from New Zealand. New Zealand is one of the last OECD countries to enact antispam law. The new law affects most public and private sector organisations in their normal operations and imposes a number of obligations on organisations in relation to emails being sent on behalf of the organisation that promote goods and services.

What the Act is designed to prohibit

Under the Act, a person must not send, or cause to be sent, a commercial electronic message that has a New Zealand link and which is unsolicited.

Each of the following elements must be proven before a breach of the Act occurs.

What is an electronic message?

An electronic message is defined in the Act as a message sent using a telecommunications service and to an electronic address. The definition is designed to capture emails and text messages. However, voice calls and facsimiles are expressly excluded from the definition.

What constitutes a commercial electronic message?

A commercial electronic message is an electronic message that, as its primary purpose, markets or promotes goods, services, land, interests in land, or business or investment opportunities. A commercial electronic message includes those messages which assist or enable a person to dishonestly obtain a financial advantage or...

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