Spam code: A friendly $500,000 reminder

Auckland, July 2007

Research aside, the most pressing issue facing New Zealand marketers concerns practices blanketing the management of databases, particularly as they relate to permission.

The Government wants to send spammers packing, threatening them with fines. Legitimate marketers might well be packing themselves, too as New Zealand's “war against spam” raises its legislative head in September when the Unsolicited Messages Act 2007 sights up senders of unsolicited email and threatens penalties of up to $500,000.

The Act applies to messages sent by email, text and instant messaging, and decrees that messages can be sent only to people who 'opt-in' to receive them. Pundits say the new Act is unlikely to seriously dent the torrent of mostly overseas spam, but is an important step complementing industry self-regulation and wide acceptance of permission-based marketing.

Few will disagree that smart spam-filtering technology will continue to provide email users with the best protection against unsolicited messages, in which case email user experiences of spam are unlikely to change much when the Act is finally enforced. However, it is an altogether different story for New Zealand's many legitimate marketers who use these digital channels, because the new legislation raises the spectre of case law.

New Zealand businesses now operate in a new era of close legal scrutiny and the price of creating legal history will be expensive - up to $500,000 for organisations and $200,000 for individuals.

New rules of the electronic highways - the big five

1. The Act is wide ranging and covers 'commercial electronic messages' including email, text and instant messaging
2. A 'commercial electronic message' is one that 'markets or promotes' products and services
3. There must be consent to receive. Consent is defined as:
   1. Express consent - where the recipient has given express or explicit permission to be sent information
   2. Inferred consent - where consent can reasonably be inferred from the conduct of the business and relationship
   3. Deemed consent - where recipients' address details have been 'conspicuously' published without any statement 'not to send' and the message being sent is relevant.
   The onus of proof of consent lies with the sender, whose contact details and those of the sender authority, must be visible. At this time, interpretation of standards relating to the inclusion of sender details in text messages and costs of unsubscribing to text messages is being considered by act enforcer the Department of Internal Affairs
4. Accurate sender contact details, including the identity of message authoriser, must be available
5. The message must provide receivers with the functional ability to unsubscribe

Take the lead

Right now Touchpoint, with lawyers Simpson Grierson, is finalising a review process that examines electronic messaging compliance, including assessment of data, permissions and consent, unsubscribe facilities and sender information protocols.

The time to take action is now, for the risks of legal action, customer alienation and public embarrassment are very real. Please call 0800 800 324 or contact your Touchpoint Account Manager for more information.

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