If your business has an email newsletter for clients, or is planning on starting one, it might pay to ensure you are not spamming your clients. By Richard Osborne
New Zealand is about to introduce legislation supposedly controlling "unsolicited electronic messages" or "SPAM". This is part of the wider problem of direct marketing channels. They use bulk mailing and fax messaging as well as telemarketing. The costs of those channels fall mainly upon the sender of the message. They have economic advantages for the mail and communications providers through fees charged to senders. However, in the case of unsolicited e-mail messages (the usual form of spam) the costs fall on the receiver.
A number of countries have become havens for these kinds of messages. As a result, there has been an increasing effort by the international community to control the level of email intrusion by legal regulation, even though many anti-spam programs are highly effective.
The European Union and the USA have tried to control junk mail and faxes and telemarketing. They use a combination of self-regulation and legal prohibitions on contacting persons who register on "do not call" lists.
The proposed New Zealand legislation does not prohibit junk mail and faxes and telemarketing. Instead, it concentrates on e-mail messaging derived from New Zealand (which is very widely defined). It also tries to control address-harvesting software and address lists.
The legislation makes a distinction between commercial electronic messages ("CEM's") and promotional electronic messages ("PEM's").
CEM's have, as their primary purpose, the marketing or promoting of the sale or use of goods, services, land or business opportunities. CEM’s do not include material requested or arising from previous commercial relationships (such as quotes or warranty information). The basic principle is that CEM’s cannot be sent to someone without their consent.
“Express” or even “reasonably implied” consent is no problem. However, “inferred consent” is more difficult. It occurs where an electronic address is conspicuously published in a business or personal capacity, is not accompanied by a "do not send" messages warning and the message actually sent is relevant to the business of the recipient. Regulations may amplify this exception but the widespread use of web sites will continue to be an invitation to spammers unless the sites have the "no send" warning.
PEM's are different. They have the purpose of promoting an organisation or entity rather than the sale of goods or services (although there will no doubt be cases of overlap). PEM's can be sent but the recipient has the right to opt out of any future messages.
Fundamentally, the distinction between CEM's and PEM's is that for the former you have to "opt in" and that for the latter you have to "opt out". Both types of messages will require full identification of the sender and an “unsubscribe facility” allowing recipients to opt out from receiving further messages by notifying the sender.
Enforcement is by complaint to Internet service providers. They have the obligation to deal with the complaint or refer it to the enforcement arm of the Department of Internal Affairs. Apart from exceptional circumstances an individual cannot make a complaint outside this procedure. Maximum fines are up to $200,000 for an individual and up to $500,000 for an organisation.
Every business with a website and using e-mail communications will have to consider the legislation. Might it be easier to adopt an "opt in" approach to all messages rather than differentiate between “opt in” and “opt out” and the difficult “implied” or “inferred consent” situations?
Telemarketing is not regulated by the legislation. Is that an opportunity? What about web sites -- will businesses wish to avoid being sent messages or are they happy to see what is in the market and then "opt out".
At the very least, the legislation will require all businesses to review their current procedures and training levels so that they can comply with and take advantage of the new regime. For more information see www.med.govt_nz