The Department of Internal Affairs will enforce the act and has a range of powers. At the lower level, the DIA could issue a warning notice. It can also issue “civil infringement notices” which are like parking tickets for spam. I understand that getting one of these might well cost you $200 if you are an individual or $500 if you are a company, but I’ll confirm that later. Breaching the act in a more serious way could land you in court – maximum penalties are $200,000 for an individual and $500,000 for a company. So how to stay squeaky clean?
The act regulates all “commercial electronic messages” with a New Zealand link – messages that promote goods or services, or land or business whether or not they are fraudulent. It also includes emails that contain links to any other commercial electronic message, including websites. In a nutshell – you can’t send them unless you already have consent from the recipient – and you must be able to prove that it is more likely than not that the recipient has consented to receiving the message. And don’t think you can get around it by using an overseas-based server – they thought of all those wrinkles. Assume it applies to all of your promotional emails.
Consent can be express (e.g. the recipient ticks a check-box on a webpage “I want to receive promotional emails”). Alternatively, it can be inferred from the person’s conduct and business relationships (e.g. a person orders clothes online: it can be inferred that they consent to receiving emails about supply problems or warranties). And if a person has published an email address in his or her official or business capacity, and if there is no “don’t spam me” message next to it, then that person is deemed to have consented to receiving emails. Consent is only valid for emails which relate to the official or business role of the recipient.
So before the act comes into force, you should check all your mailing lists. If you can’t prove consent to receiving promotional electronic messages, you can’t send that person emails after midnight on 4 September 2007.
I have received a couple of (still legitimate) unsolicited messages (from reputable local firms) in the past few days inviting me to enter a prize draw by “opting in” to receive commercial electronic messages, or asking me if I wish to unsubscribe. It’s a great way to sanitise your mailing list – but do it now, because time is limited.
If you use other people’s mailing lists, be very careful to check how they were compiled. The new act prohibits the use of address harvesting software or a harvested address list. You should get your supplier to verify in writing that the list wasn’t assembled using address harvesting software. If in doubt, ditch any harvested address lists you may be using! And if you are the one doing the address harvesting, talk to a lawyer pronto.
This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at firstname.lastname@example.org.