AUG 2007 - Questions & Answers About the "Anti-spam" Legislation
By Keith Norris, Marketing Association Chief Executive
Since the passing of the anti-Spam bill, I’ve fielded a million questions (salesman’s exaggeration!) about how it is likely to affect marketers using email and TXT etc. to communicate with customers and prospects.
So here’s a plain English Q&A about the Unsolicited Electronic Messages Act (aka the anti-Spam Act).
Q1. When does it come into force and who’s affected by it?
A. September 2007 and it relates to organisations AND individuals, which gives you less than 3 months to get your systems in place.
Q2. Which messages are affected and which excluded?
A. Unsolicited commercial electronic messages and links to those messages are affected. If you send a message by mistake or it is sent without your knowledge, you have a defence.
Q3. Which media are caught by the Act?
A. Electronic media - that is, email, TXT/SMS and other unsolicited messages sent by electronic means. However, fax and telephone are specifically excluded.
Q4. How do I get consent to send unsolicited commercial messages so they’re not perceived to be spam?
A. You can obtain consent in three easy opt-in flavours:
- Express – that’s when the receiver has already given you permission
- Inferred – you’ve got an existing relationship and hold contact details on your database
- Deemed – contact details are publicly available (e.g. on a website with no statement restricting the use of that information). However, your message must be relevant to the business or activity of the person you send it to.
Q5. What information do I need to put in the message?
A. Accurate sender information is required, e.g. name of organisation and physical address/URL/email address.
Q6. Wait a minute…..does this apply to TXT messages?
A. I’m afraid so. This is a challenge we’re all going to have to meet.
Q7. How do I handle people who wish to opt out of receiving messages?
A. It is compulsory to have a structured opt out facility on ALL unsolicited messages. This has to be available at NO COST. Another major challenge for TXT messages! The only exception to this rule is if there is an existing contract arrangement or understanding between the message sender and the recipient.
Q8. Are there any rules about collection of email addresses and mobile numbers?
A. Collecting information by use of harvesting software is expressly forbidden.
Q9. What about viral campaigns?
A. Very good question! The Act does not specifically refer to viral campaigns (forwarding commercial emails on to personal contacts). Unsolicited emails and TXTs which encourage you to forward the message to a friend will probably be covered by 'inferred consent'. However, if you are required to send the friend's details back to the original sender, you may be in breach as a third party. We advise that you avoid this type of viral marketing until we can clarify this situation with the DIA.
Q10. Do any other laws affect sending electronic messages?
A. Absolutely. You must comply with The Privacy Act 1993. There are 12 Privacy Principles and I refer you in particular to principle 3 which requires that you:
- Tell people when you’re collecting personal information
- Explain what it will be used for
- Tell them how and where it will be stored and who has access to it
- Give them full rights of access to their own information
Q11. What happens if I break the law?
A. Complaints will be handled by the Department of Internal Affairs and subject to the rules governing Civil Law.
Q12. What are the penalties for breaking the law?
A. Penalties can range from a formal warning to a civil infringement notice and in severe cases, a fine of up to $500,000. The additional fishhook is that you could also be sued for compensation and damages up to the extent of any financial loss caused by your actions.
If you’ve been following the generally accepted New Zealand rules for email communications, you need not be concerned about this legislation because you have already been operating to a higher standard than is required by the law. The Marketing Association Code of Practice for Direct Marketing requires that you have an existing and relevant relationship before sending unsolicited electronic messages.
Let’s be honest – it is unlikely that the legislation will have much effect on the Spam we receive in our own mailboxes because 99.9% of it emanates from overseas. This piece of legislation does, however, signal to the world that we have joined the fight against spammers so they needn’t bother coming ‘down under’ to set up business.
If you’re confused by any part of this legislation, you can use the MA advisory service and email me at keith@marketing.org.nz...... I hereby give you my permission!
Send this page to a friend