New Zealand's anti-spam laws

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Sep 6, 2007

The New Zealand government has just introduced new anti-spam legislation which came into effect yesterday. Basically, this makes it illegal for New Zealand businesses to send unsolicited emails, and the penalties can be up to $500,000 for companies or $200,000 for individuals, so fairly hefty.

The law applies to people in New Zealand sending spam, but there should also be some caution taken by those sending spam to New Zealand.

The purposes of the Act are to prohibit unsolicited commercial electronic messages (spam) with a New Zealand link (i.e. messages sent to, from or within New Zealand)

Clearly as an internet marketer, this effects me. Any newsletter campaigns I run are totally opt-in anyway, but I thought I better read things under a microscope anyway, not wanting to wear a half million dollar fine.

Horrified!

Check this one out, taken from the Dept of Internal Affairs website.

Friend get friend campaigns, or 'viral marketing', usually encourage subscribers to provide the name and email address of a friend who is then sent a commercial electronic message and emailed by the company or promoter encouraging them to opt in/register.

An electronic message such as this would be unsolicited because the friend has not consented to receiving the message from the company or promoter. Consequently if the message was commercial (i.e. marketing or promoting goods, services, land, a business or investment opportunity) it would be considered spam.

I had to read that bit twice because I didn't quite believe it at first. This means it's no longer legal for websites to have a "tell a friend" button, something I consider a really cool feature of news related websites. My wife spends all day sending me "check this property" type emails, as we are looking for a new place to live. As far as I can tell, the property websites are breaking the law by sending me unsolicited commercial email.

Facebook, YouTube, LinkedIn

I'm frequently getting hit by "Your friend XXXXXXX wants you to join Facebook" type emails. OK, so I'm a member now and have consented to getting their spam, but the first email sent could be considered unsolicited.

I haven't read the act in enough detail to decide what the implications are for companies like Facebook sending their "Your friend wants you to join" emails. But by my interpretation it's bad news either way.

Either...

It's ok for non-NZ sites like Facebook to send these emails, but not ok for NZ sites, or...
It's not ok for any site to send these emails to New Zealand.

I can't say I like double standards, so option one doesn't particularly appeal to me. But then option 2 doesn't work either - how are overseas companies to know about some obscure legislation in a little country with 4 million people?

Clearly, I'm out of my depth here, and I'll need to get some opinions from the legal beagles to find out what this all really means.

I'll be sad to see the end of the "tell a friend" feature, if that's the outcome of all this.

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Comments

Chris Giddings - Sep 7, 2007

The law seems to be worded in such a way as to prohibit sending a message to anyone who has not expressly requested to receive one.

This will make even doing business difficult as B2B work requires contact which may sometimes only come via an email provided by another contact. While calling and asking to send an email is a way around this issue it leaves no paper trail and offers no real legal protection.

I cannot see this law remaining enacted if Kiwi businesses have anything to say about it.

Regardless, while the law is in force it may be prudent to design your mailing modules to prohibit sending email to a user in a specified jurisdictional area (such as New Zealand) but allow yourself room to easily add or remove jurisdictions from the black list in case new governments follow suit or laws are rescinded.

Admin - Oct 15, 2007

Since it says electronic messages, I assume this means includes text messaging. ?!?

Harvey - Oct 16, 2007

Yes, this does cover text messages, but interestingly enough, not faxes.

Dinesh - Nov 5, 2007

I am looking at options where I would like companies to advertise online on my website.

If there is an email mentioned on company's webiste along with the contact person's name and if I send a message to that person asking him if he would be interested in advertising on my website - will it be considered as Unsolicited email? This law is crap and is surely complicated.... Any comments?

Dinesh - Nov 5, 2007

Sorry had a wrong email address before

After the user has registered online and an email sent to the user saying thak you for your registration - if the user does not chose to receive email during the registration process does it mean this email would be considered Unsolicited?

Harvey - Nov 5, 2007

Disclaimer: I'm not a lawyer.

However, a similar question was asked of Joe Stewart (head of the antispam unit).

The understanding I got was this...

A website that publishes it's email address is in a sense "wanting" to be emailed, providing what you send them is more-or-less relevant. This is called an "enquiry" and it happens every day.

It would be considered reasonable to email a webmaster a message asking about web advertising - that's basically just a web enquiry. Same with link exchange emails, and offers to buy a domain name - all just falling into the category of "web enquiries".

What's not ok is when they aren't publishing their email address on the website, or when you send them something about viagra or weight loss pills (which they clearly aren't expecting enquiries about).

After clearing up some of my questions, I'm actually quite happy with this law - the guys enforcing it are regular common sense people not looking to punish people who make honest mistakes.

Dinesh Kaku - Nov 5, 2007

Thanks Harvey for your quick post!!

Will - Nov 16, 2007

Hi Harvey,

I'm curious about the scenario that was described above.

Suppose a website is a directory service taking enquiries from a web form (which does not divulge email addresses). In the case where the user puts through a message saying "hey did you know you can advertise on another directory service?", is the user considered a spammer?

On the one hand the advertiser is, as you say, "asking for" enquiries about the product, but in this instance the advertiser is being informed of an alternative service they may be interested in.

I'd like to hear your opinion.

Cheers.

Harvey - Nov 16, 2007

Once again, I'm not a lawyer, so treat anything I say accordingly...

I would say if directory1.com has a general enquiry form, and you send them a message saying "hey, would you like to advertise on directory2.com" then that is fine.

If directory1.com had a form specifically for submitting your site, and you used this form to send your marketing message (as above) then this would probably be considered spam. Because the form was designed for taking site submissions, not "general enquiries".

I think it basically comes down to what sort of enquiries directory1.com is looking for - if their contact page says "Please feel free to contact us if you have any queries", and you send them a query about pretty much anything, then it's going to be hard to prove that you haven't followed instructions.

On the other hand, if the contact page says "Please feel free to contact us regarding your account or getting listed on this website", and you send them a "marketing message" promoting weight loss pills, then it's clearly going against what they were asking for on the contact page.

Bottom line - sending a message offering web advertising to any website with a general enquiry form is probably fine.