BestPrac.Org

Stop Spam : Best Practice in Email
Spam Prevention and Eradication

Anti Spam Laws -
New Zealand Spam Law : Unsolicited Electronic Messages Act 2007

The New Zealand Parliament passed the "Unsolicited Electronic Messages Act 2007" in August 2007, to take effect on September 5th, 2007. The legislation allows for a six-month transition period to allow organisations to get their email practices and database systems in order.

This New Zealand Anti Spam Law has been largely borrowed from the Australian model.

The Unsolicited Electronic Messages Act is administered and enforced by the New Zealand Department of Internal Affairs which has established a new Anti-Spam Compliance Unit.

Similar to the Australian spam legislation, an important part of the New Zealand 'Unsolicited Electronic Messages Act 2007' is that it does not only apply to New Zealand spammers. It also applies to spam sent from overseas, with New Zealand negotiating multilateral agreements with other nations and cooperating with international agencies to combat unsolicited electronic messages, mainly email.

The New Zealand spam legislation provides for an "opt-in" approach to bulk commercial emailing. Although consent is mandatory, consent is defined in the Act as being either "express consent" or "implied consent" or "deemed consent". It provides for fewer types of organisations to be exempted from the Act than its Australian counterpart.

While enforcement is by the Dept. of Internal Affairs, the Act provides a stronger right for an individual victim of spam to take independent action (i.e. independent of the Dept. of Internal Affairs) seeking compensation and damages against spammers than does the Australian model.

Summary of the Major Provisions of the New Zealand Unsolicited Electronic Messages Act 2007

It is illegal to send, or cause to be sent, unsolicited commercial electronic messages. The Act covers email, instant messaging, SMS and MMS of a commercial nature. (It does not cover faxes, internet pop-ups or voice telemarketing.)
The offence need not be "bulk" sending of the spam. A single message to a single recipient is theoretically an offence.
The Act covers messages that are sent:
- from New Zealand; or
- by senders who:
  - are physically present in New Zealand; or
  - are organisations with central management and control (board meetings) in New Zealand; or
- to computers in New Zealand (including the recipient’s personal computer); or
- to recipients who read the message when they:
  - are physically present in New Zealand; or
  - are organisations carrying on business in New Zealand;
The following organisations are exempt from the Act on the proviso that the message sent by these organisations must relate to goods or services and the sender must be the supplier of those goods or services. :
- government bodies
- a Court or tribunal
All commercial messages must contain accurate information about the message's originator. (The originator need not necessarily be the sender. It is the individual or organisation that authorised the message.) Such information must be likely to remain current for at least 30 days from the sending of the message.
All messages must contain a functional 'unsubscribe' facility that is reasonably expected to work for at least 30 days after the sending of a message, and must be free of charge.
An "opt-out" request must be honoured within 5 working days.
While the legislation does not compel an "opt-in" approach, it still does compel consent. Consent may be either "express consent", "deemed consent" or "implied consent" - for example, where there is an existing relationship or where a website publishes an email address and invites relevant correspondence.
The Act prohibits the supply, acquisition or use of software that 'harvests' email (or other electronic) addresses from the internet for the purpose of sending spam.
The sale, purchase or other forms of provision, acquisition or use of address lists to send spam is prohibited.
It is an offence to aid, abet or otherwise being knowingly involved in any contravention of the Act.

Penalties for breaches of the New Zealand Unsolicited Electronic Messages Act 2007:

The Department of Internal Affairs has four options for penalising offenders under the Unsolicited Electronic Messages Act 2007:

Firstly, the DoIA may issue a Formal Warning. It is likely to issue a formal warning when an offence is considered to be inadvertent, relatively minor and one-off;
Secondly the DoIA may issue an Infringement Notice.
Thirdly, the DoIA may seek and negotiate Enforceable Undertakings.
Fourthly, the DoIA may institute Court Proceedings.

There is a maximum fine for $500,000 for an organisation and $200,000 for an individual. A spammer could also be ordered to pay victims compensation for loss suffered and/or damages based on profit gained from sending the spam.

Reporting Violations:

The New Zealand Dept.of Internal Affairs Anti-Spam Compliance Unit encourages New Zealand internet users to report spam to them if you believe that the commercial electronic message originated in New Zealand or was sent by a New Zealand company or was sent by a person based in New Zealand..

You can submit email spam by completing an online spam submission form.

Presumably, non-New Zealand internet users would also be encouraged to submit any spam to the Anti-Spam Compliance Unit via these methods if believe that the commercial electronic message (spam email) originated in New Zealand or was sent by a New Zealand company or was sent by a person based in New Zealand.

Further Information:

Disclaimer:

The above is given in summary form only. It is not a comprehensive statement of every aspect of New Zealand anti spam law. This page is for informational and educational purposes only and does not constitute legal advise. Please make your own enquiries and seek your own legal advise before relying on any statements made herein.

Stop Spam : Best Practice in Email Spam Prevention and Eradication