The answers below are based on the questions the DIA have received to date. To help you find what you are looking for, these have been grouped into sections:
If you have any questions not covered by the answers below please contact the DIA at firstname.lastname@example.org
A commercial electronic message may only be sent if the recipient has consented to receive it. If you don’t think that the recipient has consented then the “click here to unsubscribe” type of email cannot establish consent for future purposes.
Many recipients may treat such a message as spam and may not respond or even open it. There is no real relationship when the communication is one-sided and the recipient's silence should not be taken as consent.
Yes, verbal consent is okay.
However, it is advisable to keep a record of verbal consent. If a complaint is ever laid the onus of proof of consent is on the sender of the message (as stated in section 9 (3) of the Act).
That would depend on the circumstances of the business card swap.
‘Inferred consent’ in the context of supplying a business card primarily relates to the development of a relationship between the parties. Inferred consent would only apply if the electronic message sent specifically related to the relationship that had developed at the time a business card was supplied.
For example, if A and B exchange business cards during a business type meeting, general consent would be inferred between A and B that they agree to receive electronic messages from each other that relate specifically to the meeting or generally to A and B’s business relationship. The content of the information shared can be limited or extended by A and B.
It is unlikely that an intended outcome of a person handing out their business cards would directly lead to them receiving commercial electronic messages that in no way were attributable to the original circumstances where the cards were provided.
You will need to keep proof of the consent in some form. Over time the on-going correspondence becomes evidence of a relationship and you won't have to keep the business card.
Referrals from colleagues without the recipient’s knowledge or consent cannot be defined as deemed or inferred consent.
If your research identifies an electronic address or mobile number that is conspicuously published by the person in a business or official capacity (website, brochure or magazine) deemed consent may be possible. As long as the publication of the address is not accompanied by a statement to the effect that the relevant electronic address holder does not want to receive unsolicited electronic messages and the message is relevant to the business, role, functions or duties of the person in their business or official capacity.
There are two possible reasons your messages would not be considered spam under the Unsolicited Electronic Messages Act.
Firstly, an electronic message about the goods and services of a tertiary education institute is not considered an electronic message for the purpose of the Act and therefore does not need to meet the requirements of the Act.
The Act states that an electronic message that provides the recipient with information about goods or services offered or supplied by a ‘government body’ is not a commercial electronic message. ‘Government body’ includes the core government departments named in Part 1 of Schedule 1 of the Ombudsmen Act 1975) and ‘Crown Entities’ (as defined in section 10(1) of the Crown Entities Act 2004). Tertiary education institutions are Crown entities.
Secondly, if you are emailing students about services provided by the institution you should be able to rely on inferred consent. This is because there is a clear and reasonable expectation that messages will be sent, due to the nature of the relationship between the tertiary institution and the student.
We also suggest that you still clearly identify who sent the message, and provide a functioning unsubscribe facility.
We consider that your purpose would be commercial as you are marketing or promoting a service. The Unsolicited Electronic Messages Act’s definition of a service is contained within section 2 of the Consumer Guarantees Act 1993.
The Act provides that if:
Yes, if the customer ticked the box saying that they agreed to receive promotional material from third parties then it would not breach the Act to send them such material.
If a message markets or promotes goods or services it is irrelevant that the goods or services are free, the message will still be considered spam if you do not have the consent of the recipient.
The Unsolicited Electronic Messages Act states that an electronic message that facilitates, completes or confirms a commercial transaction the recipient previously agreed to is not a commercial electronic message.
This means you can send emails confirming the order, confirming receipt of payment, and notifying delivery details. It does not mean you can send emails asking about customer satisfaction as you cannot reasonably infer consent from a single purchase.
If you are sending an email with a link to a commercial service (including email signatures), then you are required to have the consent of the recipient. You must also include accurate contact details for the sender of the email and a functional unsubscribe facility.
However, if you are communicating to a friend it is unlikely the Department will receive a complaint about your email due to the nature of your relationship and the nature of the email. If there is no link to a commercial service and the email is not commercial by nature, then the Act will not apply.
Any email your friend then sends is sent under their authority and they are responsible for ensuring they meet the requirements of the Act.
We don’t consider that you can reasonably infer consent from a single transaction. If you wish to send a customer, with whom you have had one transaction, marketing and promotional material you should seek their express consent.
The Unsolicited Electronic Messages Act states that an electronic message that facilitates, completes or confirms a commercial transaction the recipient previously agreed to is not a commercial electronic message. You could use the sending of these electronic messages as an opportunity to seek express consent to send promotional material in the future.
No. If you have stopped your membership and/or unsubscribed then the gym cannot send you further commercial electronic messages until they have your consent.
No, you do not have consent to email the third party. However, phoning to ask for consent to send them commercial electronic emails would be perfectly fine.
No. The Unsolicited Electronic Messages Act stipulates that your unsubscribe facility needs to be clear and conspicuous, free, likely to be functional for at least 30 days after the original message is sent, and able to be sent using the same method of communication that was used to send the original message.
For example, a sentence such as “Please reply by return email with ‘unsubscribe’ in the subject line if you do not wish to be contacted again’ should meet the requirements of the Act (providing the request was actioned within five days, and met the above criteria).
Yes. If it is sent within five working days of the unsubscribe request.
The clock starts the day after the recipient used the unsubscribe facility. Therefore you need to ensure that you have a system whereby all unsubscribe requests are actioned within the five working day period.
A web-based link is fine provided that you don’t make it unnecessarily difficult for someone to unsubscribe.
The Unsolicited Electronic Messages Act allows parties to contract out of providing an unsubscribe facility. However, unsubscribe requests relevant to commercial electronic messages must still be actioned if received.
This means that if a customer informs a company that they wish to unsubscribe, the company must action the request. In other words the customer can withdraw their consent to receive promotional electronic messages at any stage.
Yes, but only if the email is sent within the five working days in which the unsubscribe request must be actioned. After this period, you will no longer have consent to email the recipient.
The Unsolicited Electronic Messages Act 2007 is based on the Australian Spam Act 2003. However, it is simpler than the Australian Act in that it uses general descriptions and definitions and less specific exceptions.
For a more detailed comparison see the citations at the end of every section of the Unsolicited Electronic Messages Act.
Everyone, including the Crown is bound by the Act. However, information about goods or services offered or supplied by a government body or a court or tribunal is not considered ‘commercial’ and therefore will not be subject to the consent-identification-unsubscribe requirements. You should note that the definition of ‘government body’ is very wide and also includes many educational institutions and crown entities.
Section 6(b) provides more exceptions to the ‘commercial’ definition, which in most cases involve ongoing relationships between the sender and the recipient.
It is important to remember that as a general rule, exceptions will depend on the content of the message, and will not be blanket exemptions covering everything an organisation may send via an electronic message.
Follow the three steps to ensure you are not spamming i.e. consent of the recipient, identify yourself and provide a functional unsubscribe facility.
If you send something to another community member who objects to the message, apologise and don’t do it again. In most cases that will be the end of the matter.
The purpose of the Unsolicited Electronic Messages Act is to address the abundance of unsolicited messages being sent using particular forms of electronic communication.
Phone calls operate in a different manner to the electronic messages defined in the Act and would require unique legislation to regulate. Also, the inclusion of phone calls in the definition of spam would limit opportunities for businesses to make ‘first contact’ communications.
The Act prohibits electronic spam with a New Zealand link. A spam email address that ends in ‘.nz’ is just one example of this. An electronic message is considered to have a New Zealand link if it is sent to, from, or within New Zealand. See section 4 of the Unsolicited Electronic Messages Act for a full definition.
If the message provides the recipient with information about goods and services offered or supplied by a government body, court, or tribunal, then it is not a commercial electronic message. It does not matter that your organisation is not a government body.
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. However, if the company's email is forwarded by the recipient to a friend(s) this is usually okay.
For example: A and B are good friends, and send each other emails on a routine basis. Company C has an express consent from A to send commercial emails to them. A then decides to forward to B commercial emails he received from company C. If it can be assumed from the relationship that B is happy to receive the commercial emails forwarded by A, consent could reasonably be inferred.
That consent, however, will not exist between the company and B. If the company only had A’s consent, it cannot assume B has consented to receive its commercial emails. In most cases, the relationship between A and B is not likely to be of interest to the Electronic Messaging Team, unless B complained about A’s emails. In that case, the onus will be on A to show that inferred consent existed.
As discussed in the above question viral marketing (or friend get friend) commonly involves the production of something interesting and then relying on people to circulate it to their friends.
This is fine, provided the company has the consent of the person they send the initial electronic message to and the campaign itself doesn’t encourage spamming. For example, a campaign that encourages people to forward emails to 100 friends would not be reasonable.
The primary question is whether or not the sending of the commercial electronic message is ‘unsolicited’.
In this case the challenger (not the company) is the sender of the commercial electronic message and would need to have the consent of the recipient. In the case of a friend sending a friend a message this should not be a problem as the nature of the relationship is that consent can reasonably be inferred.
If the Department was approached by someone who objected to a friend sending them commercial electronic messages we would probably suggest that they speak to their friend in the first instance, and request that they stop sending such messages.
You must identify the sender of the messages, how the recipient can contact them, and provide a free-of-charge unsubscribe facility.
For example, Judith owns ‘Beautiful U’ beauty salon and has express consent to send her clients promotional TXT messages. She includes ‘Beautiful U. Reply OPT-OUT to unsubscribe’ at the end of every message. The cost of the reply is reverse billed to Beautiful U.
Note: If you use another organisation, a third party, to send commercial electronic messages on your behalf and the unsubscribe function is directed to the third party organisation they will need to include your businesses contact details also.
An email address used as an unsubscribe function in a TXT message is not compliant with the Unsolicited Electronic Messages Act. The unsubscribe facility must allow the recipient to respond to the sender using the same method of communication used to send the original message.
If you send commercial TXT messages you must arrange a free unsubscribe facility via TXT message.
Abbreviating a company's name is suitable, as long as the abbreviation allows the recipient to clearly and accurately identify the company i.e. organisations such as TVNZ and VTNZ would be fine.
Yes the legislation says it must be free. If your provider is unable to provide this service then you must not send commercial electronic messages using text or fax.
Commonly used abbreviated place names such as Auck, Chch, Wgtn are suitable for identifying the specific location of the sender. The message must also contain information on how to contact the business responsible for the message (i.e. if the reply to opt-out doesn’t already do this).
Including the unsubscribe facility on a multi-page TXT is acceptable. It does not have to be included in the first TXT.
‘Spammers’ obtain email addresses in a variety of ways:
Contacts published in a trade directory would be ‘conspicuously published’ and therefore you would have deemed consent to send messages if they are relevant to the business, role, functions, or duties of the person/company that the message is sent to.
Note: You would not have deemed consent if the published electronic address was accompanied by a statement to the effect that the address holder does not want to receive unsolicited electronic messages.
If the purpose of the survey is commercial (e.g. to promote a good or service, test brand loyalty and recognition) then the message will be considered spam if you do not have the consent of the recipient.
Firstly, charities generally send emails to known contributors i.e. signed up members. These messages would probably have either express consent or the sender could reasonably infer consent. If the member then sends the message on to their friend then the onus of consent is on the member (and the nature of their relationship with their friend means that consent can reasonably be inferred).
The other issue to consider is whether the charity’s message is ‘commercial’. Consider whether the message is marketing or promoting goods or services. If the message does not market or promote goods and services then it is not a commercial electronic message and therefore would not be considered spam.
Yes, providing you have consent to send the original email.
For example, the original email might be to confirm an order or receipt of payment for an order. You have inferred consent to send this message and you can use it as an opportunity to ask a customer if they wish to join your database.
The Unsolicited Electronic Messages Act provides that it is a defence (against the accusation of spamming) if the person who sent the message, or who caused the message to be sent, did so by mistake. However, in order to rely on this defence, the onus of proof will be on the sender.
If a company has clear policies on the process for obtaining consent and who may send commercial electronic messages, and an employee breaches those policies it is likely the Department will regard it as a breach by the employee.
However, it will depend on a number of factors such as the intent of the message, the training and policies in place, the accounts used to send the message, whether a database was used appropriately, etc.
Employing a double opt-in system is a good idea because it eliminates the chance of abuse, where someone submits someone else’s email address without their knowledge and against their will.
Usually a user subscribes to a newsletter, or other communication, by filling in some type of form and a confirmation email is sent to the email address provided asking the recipient to click on a link to register. Hence the user has opted in twice and you have the assurance that they really want to receive your communications.
An automated page on a website is not a message sent to an electronic address and is therefore not covered by the Unsolicited Electronic Messages Act.
In the case of automated replies to a customer’s email address, the Unsolicited Electronic Messages Act states that an electronic message that facilitates, completes or confirms a commercial transaction the recipient previously agreed to is not a commercial electronic message. You can attach promotional material to such a message.
Yes, it will depend on the content and whether it comes within the definition of a commercial electronic message.
Written petitions do not come within the definition of a ‘commercial electronic message’ and therefore would not constitute spam.
The Unsolicited Electronic Messages Act contains a prohibition against using addresses gathered using ‘address harvesting software’ to send spam. This type of software searches the Internet for electronic addresses and compiles them into lists. Collecting electronic addresses from emails you have received is not using address-harvesting software.
However, you can’t just collect these emails to use when promoting your products because you cannot reasonably infer consent from a single correspondence. When you are replying to the queries it’s a good opportunity though to seek express consent to send the recipient promotional emails in the future.
Yes, an individual victim of spam can take independent action seeking compensation and damages against spammers.
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