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Spam busters on the run

Spam busters on the run

In the last issue I introduced our new Unsolicited Electronic Messages Act 2007, which is set to stop spam email from entering New Zealand inboxes. Nice idea – but it comes with a downside for legitimate traders like you. Let’s look at what could happen if you breach the act.

To recap, the act prohibits sending of unsolicited, commercial electronic messages with a New Zealand connection or that don’t contain accurate sender information and a functional unsubscribe facility. It will be policed by a government enforcement agency (the Spamdog?).

Breaching the act is a civil wrong. This means in court, the standard of proof of breach is only the civil standard.

Members of the public will be able to complain to the enforcement agency, free of charge. What fun! Remember, your organisation could breach the act by sending a single unsolicited commercial electronic message. So, if you breach the act, and one “concerned” recipient complains, what could happen to you?

Fortunately there is a low level first approach. Enforcement officers can issue formal warnings if they believe the act has been breached. Next, they can issue “civil infringement notices”, rather like a parking ticket for your email. The act says that the maximum amount for a penalty in a civil infringement notice will be set by regulations. (We’ll keep you posted.) They can get search warrants, of course. The enforcement agency also has the power to enter into legally binding agreements (undertakings) with senders of electronic messages, to require them to cease their spamming conduct.

The enforcement agency could seek a court order for pecuniary penalties (similar to fines) of up to $200,000 for an individual, (who was it who organised the send button to be clicked? This could mean you!), or up to $500,000 for a company. How much you pay will depend on issues like the number of messages sent, the number of addresses sent to and any prior breaches of the act by the sender. (Remember those formal warnings? They come back to bite you here.)

The court can also order someone who has breached the spam act to pay compensation for damage or loss suffered by victims of the breach. Anyone can bring an action seeking compensation; or the enforcement department can apply to the court on behalf of victims. The court can issue injunctions to stop breaches from continuing.

So, starting with formal warnings and going right up the scale to pecuniary penalties and other court orders, you can see that lots of nasty things can happen if you breach the spam act. And you just thought it was ordinary old spam.

You have until 5 September, 2007 to get to grips with this. Just remember that the most important aspect will be going through your mailing lists, culling out people who have no business relationship with you. Start your words-of-one-syllable unsubscribe facility early, so that by the time the act starts, you will already have a good track record to show that people who have received your e-mails could have unsubscribed, and chose not to do so.

I’m picking that it won’t be a “bad guy” spammer who gets caught when the act first comes into effect. It is more likely to be someone like you, a well-meaning trader who will be the first to fall foul of the new act. Now is the time to make sure your electronic messages and related systems comply with the act – it’s not that hard.

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 raenield@marketinglaw.co.nz.


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