Unsolicited Electronic Messages Act 2007

The Unsolicited Electronic Messages Act 2007 comes into effect on 6 September 2007

As a business owner, you may have to know about the new Unsolicited Electronic Messages Act. The Department of Internal Affairs (DIA) has established an Anti-Spam Unit to investigate complaints about spam from the public and act against New Zealand "spammers".

Why do we need to enact a specific anti-Spam legislation?

In just a few years, unsolicited commercial e-mail - generally known as "Spam" - has gone from being a minor nuisance to becoming a significant social and economic issue. It is also a drain on the business and personal productivity of New Zealanders.

What the Bill will achieve:

Enactment of this Bill is part of a multi-pronged approach to address the problem of Spam, and will provide the following benefits:
The Bill will prohibit Spam and enable legal action to be taken against spammers based in New Zealand;
- It will regulate the sending of commercial electronic messages;
- It will prevent New Zealand from being seen as a safe haven for spammers; and
- It will provide a basis for New Zealand to participate in international regulatory arrangements to curb the growth of Spam.

The legislation will apply to:

- Electronic messages, including email, text messaging and instant messaging, but not to facsimile messages and voice calls;
- "Commercial" messages, that is, they are primarily for the purpose of marketing or promoting goods, services, land or an interest in land, or a business or investment opportunity, or for the purpose of assisting or enabling a person, by a deception, to dishonestly obtain a financial advantage or a gain from another person;
- "promotional" messages, that is, they market or promote an organisation's aims or ideals; and
- messages with a "New Zealand link", that is messages sent within or from New Zealand, messages authorised by a person or organisation from New Zealand and messages sent to people in New Zealand from overseas.
- Restrictions on the sending of electronic messages

The main issue with Spam is that it is unsolicited. To address this, the Bill requires that commercial electronic messages can only be transmitted if the recipient has opted in, that is, they have expressly or implicitly consented to such transmission. This is the regime favoured by anti-Spam groups and the majority of legislators, including Australia and the EU.

For promotional electronic messages, however, legislation will require that further such messages can only be sent if the recipient has not opted out, that is, they have not taken action to indicate to the sender that such messages are unwanted.

Feedback from the consultation process indicated that all unsolicited electronic messages should be prohibited, whether they promote goods and services, or aims and ideals such as by a political or religious organization. However, the government has considered that an opt-out approach to consent for promotional messages is appropriate because the right to freedom of expression is a fundamental right in a democratic society. Recipients of such messages are best placed to determine whether they wish to receive similar such messages in the future.

Regulation of the sending of commercial and promotional electronic messages

The legislation will require specified commercial and promotional electronic messages to have accurate sender identification and a functional unsubscribe facility, that is, a working and clearly visible means of opting out of future such messages. These measures empower ISPs, businesses and users to better control the email they have to deal with.
Restrictions on address-harvesting software and harvested-address lists
The Bill will prohibit the supply and use of address-harvesting software and harvested-address lists for Spam purposes.

The enforcement regime

This legislation will be enforced through a regime that provides for a range of civil pecuniary penalties and remedies. The enforcement regime will based on a tiered structure with emphasis on Internet Service Providers (ISPs) and telecommunications carriers taking action in response to customer complaints in the first instance.

If complaints cannot be satisfactorily resolved in this way then the user's ISP/carrier can forward the matter on to the enforcement agency. The enforcement agency will then consider whether an investigation or further action is appropriate.
The government enforcement agency will have available to it a range of penalties and remedies. This will enable it to adopt a flexible approach to enforcement including issuing warnings, entering into enforceable undertakings, issuing infringement notices, seeking injunctions and taking legal action for contraventions of the Act.

Under this legislation, ISPs/carriers and users affected by contraventions of the legislation will have the right to take direct legal action as well as join any action taken by the enforcement agency.

The Department of Internal Affairs will be the responsible enforcement agency. It will have responsibility for carrying out any investigations regarding complaints referred by ISPs/carriers or matters that it considers should be investigated, issuing warnings and infringement notices, taking legal action where appropriate, and cooperating with overseas enforcement agencies

Sources: Scoop.co.nz