Since 2007 when the Unsolicited Electronic Messages Act 2007 came into force, it has been illegal for NZ businesses to send unsolicited commercial emails to people,(referred to as SPAM) who hadn’t previously agreed to receive them.
However from our own experiences, many businesses are still unaware of the laws, and are carrying out some very poor practices when managing mass email communications. This topic is therefore for the benefit of our own clients, many of whom are businesses, that use mass email communications for their business.
We decided to write about this topic, after recently receiving a flurry of unsolicited emails from NZ companies that we had never heard of. When we contacted some of these businesses, and asked where they got our details from, they had no record of where our email address was actually sourced from. But they promised to remove our email address from their database. That should have been the end of it, but in several cases we continued to receive unsolicited email from them. Some of them had no automated way to remove us from their database. Others failed to provide any contact details or subscription information in the emails they sent us.
There are certain standards set down in the Unsolicited Electronic Messages Act 2007. Failure to comply with the Act could mean a fine of up to $500,000 and the business could also be made to pay the victims compensation up to the amount of loss suffered or damages up to the amount of loss suffered or damages up to the amount of profit that was made as a result of sending the spam.
The act applies to Email, Instant messages, SMS texts, and now also fax messages. Full information and requirements can be found at http://www.dia.govt.nz/services-anti-spam-index
Many people who receive unsolicited email/spam from NZ businesses are not aware that you can actually report these companies to the NZ Antispam unit, which is run by the NZ Department of Internal Affairs. You can report any unsolicited email that has been received from New Zealand Businesses, to the following website complaints.antispam.govt.nz .
If you are a NZ Business, and send emails to your customers on a mailing list, please be sure to follow the guidelines set down by the NZ Antispam department, as specified below. This is current as of April 2013.
Three steps to ensure you are not ‘spamming’
Step One – Consent
Commercial messages must be sent only when you have express consent, inferred consent, or deemed consent.
Express consent is a direct indication from the person you wish to contact that it is okay to send the message(s).
Express consent can be gained in a variety of ways such as:
- Filling in a paper form
- Ticking a box on a website
- A phone or face-to-face conversation.
Businesses should keep a record of all instances where consent is given, including who gave the consent and how. Under the Act it is up to the sender to prove that consent exists.
It is also advisable to verify that consent has come from the actual holder of a particular electronic address. This can be done by requesting that the recipient reply confirming they would like to receive future messages.
If you are using an existing database of addresses and you are not sure if you have the express consent of the people listed you will need to obtain it (even if you have been sending electronic messages to these customers for years).
Inferred consent is when the person you wish to contact has not directly instructed you to send them a message, but it is still clear that there is a reasonable expectation that messages will be sent.
For example, the address-holder provided their email address when purchasing goods and services in the general expectation that there will be follow-up communication.
If someone has been on your existing address list and has not ‘unsubscribed’, it does not mean that consent can be inferred. If you are not confident that the existing relationship is strong enough to infer consent, you should obtain express consent. Inferred consent is limited in its application.
For example if people join a tennis club you can infer consent to send them a tennis newsletter, but you could not infer consent to send them an investment newsletter.
Deemed consent is when someone conspicuously publishes their work-related electronic address (e.g. on a website, brochure or magazine).
However, if a publication includes a statement that the person does not want to receive unsolicited commercial electronic messages at that address, consent cannot be deemed.
There also must be a strong link between the message and the recipient’s business.
Step Two – Identify
Commercial messages must always clearly identify the business responsible for sending the message and how they can be contacted.
Sometimes you might use another organisation, a third party, to send commercial electronic messages on your behalf. This third party must include accurate information about your business, i.e. name and contact details.
The amount of information may depend on the medium by which the message is sent. Text messages impose limitations on the amount that can be displayed.
Identification details that are provided must be reasonably likely to be accurate for a period of 30 days after the message is sent. This requirement ensures that addressees have a reasonable chance of being able to contact you.
Step Three – Unsubscribe
Commercial messages must contain a functioning unsubscribe facility, allowing people to state that commercial messages should not be sent to them in the future.
It needs to be clearly presented, easy to use and free of charge. It could be as simple as a line in your message saying, ‘If you do not wish to receive future messages, send a reply with UNSUBSCRIBE’ in the subject line.
However, if you have an ongoing arrangement/contract with the recipient of your message waiving this requirement you will not need to include an unsubscribe function.
You must honour a request to unsubscribe within five working days.
Similar to the identification of the message’s sender (in step 2) the unsubscribe facility must be reasonably likely to remain accurate and functional for a 30 day period. It need not be an automated process, but should be reliable.
Email mailing lists must be very carefully managed and controlled.
For our own clients who regularly send mass emails to customers or suppliers, we strongly recommend you strictly adhere to all the guidelines above. In addition to these, we also suggest the following is done:
- We suggest retaining a full record for each email address that you have in your database, and where that email address was sourced from. If it was a newsletter signup on your own website, make sure you retain the IP, and the date. Most professional email marketing systems will do all this for you. Therefore were recommend using a professional email marketing system such as Constant Contact, and they are very affordably priced.
- If you have a newsletter signup form on your website, make sure it is fully automated and has a double opt-in system, to confirm the email address is real, and to confirm that the person who signed up didn’t just enter someone else’s email address without their permission. You don’t want someone signing up on behalf of someone else. Many NZ websites that have a newsletter signup form have no form of double opt-in system, which could create problems for them.
- Make sure you have an easy way for people to unsubscribe from your newsletter. We recommend that this is fully automated, so there is no human involvement, and it is fullproof. eg. So all the recipient needs to do is click on a unique link in your email. Manual unsubscription methods, such as the recipient replying with ‘unsubscribe’ in the subject line are unreliable.
- If you get a compliant about sending spam from anyone, always address this immediately with the person complaining. Don’t ever ignore it. You should also unsubscribe them immediately from your mailing list.
We strongly recommend using a professional email marketing system, such as Constant Contact, to manage all your email marketing. This can be very cost effective, and can eliminate human error. You can get a FREE 60 day trial of Constant Contact by clicking the link below.
Please contact us if you would like us to help you setup an email marketing solution for your business.
Disclaimer: We are not lawyers. This page is solely our interpretation of the Unsolicited Electronic Messages Act 2007, and should not be used for any other purpose. Any information on this page should be used as the readers own risk. If you need more information, or have any questions on sending emails from your NZ business visit http://www.dia.govt.nz/services-anti-spam-index