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Spam Act: Rules around unsolicited emails and texts

Key Takeaway

New Zealand's Unsolicited Electronic Messages Act 2007 regulates the sending of commercial emails and texts. It generally prohibits sending such messages without the recipient's consent, requires clear sender identification, and mandates an easy unsubscribe option. Breaches can result in significant penalties.

Rules Around Unsolicited Electronic Messages (Spam) in New Zealand

New Zealand law regulates the sending of unsolicited commercial electronic messages, commonly known as 'spam,' through the Unsolicited Electronic Messages Act 2007 (UEMA). This legislation aims to protect individuals and organisations from unwanted electronic communications while ensuring legitimate businesses can operate effectively online.

What is a Commercial Electronic Message?

A commercial electronic message is defined as an electronic message that it is reasonable to conclude has an offer, advertisement, or promotion of goods, services, land, or business/investment opportunities [Source: Unsolicited Electronic Messages Act 2007, s 4]. This includes messages that direct recipients to content containing such offers, advertisements, or promotions [Source: Unsolicited Electronic Messages Act 2007, s 4(b)]. Electronic messages include emails, instant messages, and text messages (SMS) [Source: Unsolicited Electronic Messages Act 2007, s 4(1), definition of 'electronic message'].

Key Prohibitions under the UEMA

The UEMA establishes three primary prohibitions related to commercial electronic messages:

  1. Sending Unsolicited Commercial Electronic Messages: It is prohibited to send, or cause to be sent, a commercial electronic message to an electronic address unless the recipient has consented to receive it [Source: Unsolicited Electronic Messages Act 2007, s 6].
  2. Using Address-Harvesting Software: The Act prohibits the use of software that is designed to automatically generate, collect, capture, or otherwise harvest electronic addresses from the internet or other electronic networks [Source: Unsolicited Electronic Messages Act 2007, s 7(1)].
  3. Supplying or Using Harvested Addresses: It is prohibited to supply, acquire, or use an electronic address list that has been generated or compiled using address-harvesting software [Source: Unsolicited Electronic Messages Act 2007, s 8(1)].

Requirements for Sending Commercial Electronic Messages

When sending commercial electronic messages, even with consent, specific conditions must be met:

  1. Consent: Commercial electronic messages must only be sent with the consent of the recipient. Consent can be express (directly given, e.g., by ticking a box or signing up for a newsletter) or inferred (reasonably assumed from the recipient's conduct, business relationship, or public availability of their address, provided it is relevant to their role or function) [Source: Unsolicited Electronic Messages Act 2007, s 9].
  2. Identification: The message must clearly and accurately identify the individual or organisation who authorised the sending of the message [Source: Unsolicited Electronic Messages Act 2007, s 10(a)]. It must also include valid contact information for that individual or organisation [Source: Unsolicited Electronic Messages Act 2007, s 10(b)].
  3. Unsubscribe Facility: Every commercial electronic message must contain a functional and conspicuous electronic address or link that allows the recipient to easily unsubscribe from receiving further commercial electronic messages from that sender [Source: Unsolicited Electronic Messages Act 2007, s 11(a)]. This unsubscribe facility must remain operational for at least 30 working days after the message is sent [Source: Unsolicited Electronic Messages Act 2007, s 11(c)], and requests to unsubscribe must be actioned within 5 working days [Source: Unsolicited Electronic Messages Act 2007, s 11(d)].

Exemptions

The UEMA provides certain exemptions where the prohibitions do not apply. These include messages relating to factual information, warranty information, or messages sent by government bodies, political parties, charities, or educational institutions for specific non-commercial purposes [Source: Unsolicited Electronic Messages Act 2007, s 12].

Enforcement and Penalties

The Department of Internal Affairs (DIA) is responsible for enforcing the Unsolicited Electronic Messages Act 2007 [Source: Unsolicited Electronic Messages Act 2007, s 32]. Breaching the UEMA can result in significant penalties. Individuals can face pecuniary penalties up to $200,000, and organisations up to $500,000 for each contravention [Source: Unsolicited Electronic Messages Act 2007, s 34(1)]. The DIA may also issue formal warnings, compliance notices, or accept enforceable undertakings [Source: Unsolicited Electronic Messages Act 2007, ss 28, 29, 31].

When to Seek Independent Legal Advice

Navigating the specific requirements of the Unsolicited Electronic Messages Act 2007 can be complex. Individuals or organisations seeking to understand their specific obligations, ensure compliance, or respond to allegations of non-compliance are encouraged to seek independent legal advice. For free legal advice, Community Law Centres across New Zealand are available to assist.

Key Resources