With the constant development of technology, electronic advertising has emerged as powerful advertising platform. As electronic devices become more and more accessible to the public, businesses have gained a larger target audience.
This growth means extra care needs to be taken when a business sends an electronic message to promote its goods and services, to ensure it is compliant with the Unsolicited Electronic Messages Act 2007 (“Act”) or commonly known as the anti-spam law.
Under the Act, an individual or organisation (“business”) must not send or cause to be sent an unsolicited commercial electronic message that has a New Zealand link. Unsolicited means without the consent to receive by the customer/recipient. Examples of commercial electronic message include electronic messages that market or promotes goods, services, land, businesses or investment opportunities; it does not matter whether the promoted goods or services are free. It is important that businesses comply with the Act, otherwise an organisation that breaches the Act can be fined up to $500,000 and an individual can be fined up to $200,000.
If the business contends that the recipient consented to receiving the commercial electronic message, then the onus of proof is on the business who contends to show that the recipient has consented. It is possible for a recipient to give a verbal consent as there is no obligation under the Act for the consent to be in writing, as long as businesses bear in mind that if a complaint is laid, the business will bear the onus of proof.
Even if the business has the consent of the recipient, a commercial electronic message needs to accurately provide the information of the business, and ensure that the recipient can use the provided information to contact the business. The information must also remain accurate for at least 30 days after the message is sent.
In addition to recipient of consent and proper identification of the business, a commercial electronic message must also contain a free and functional unsubscribe facility, that the recipient can use in the event the recipient no longer wishes to receive further commercial electronic messages. The unsubscribe facility needs to remain functional for at least 30 days after the message is sent.
The business must cancel the subscription within 5 working days after the unsubscribe facility was used. Where a business wishes to confirm the subscription has been cancelled to its recipient, or enquire the reason for unsubscribing, these all need to be sent within the 5 days’ timeframe.
Also it is important for businesses that send commercial electronic messages via text to check with their telecommunication provider that it is free for the recipient to unsubscribe in a text.
It is also a misconception thinking that spam requires a large number of messages to have been sent. It only takes sending of one unsolicited commercial electronic message to commit a breach.
To ensure your business is not sending out spams, check that you have obtained the recipient’s consent and that if required, you are able to show proof of this consent. Also ensure the message clearly identifies your business and includes clear contact information, and that each commercial message has a free and functional unsubscribe facility.
Christine Liang – Barrister and Solicitor