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NZ’s Unsolicited Electronic Messages Act comes into force—but not much will change 

There have been a lot of domestic businesses emailing me of late out of fear that, if they sent me more bulk emails, they would violate the new anti-spam legislation that comes into force in New Zealand tomorrow.
   This has been good in the case of NZ Post, to whom I never gave permission to spam me. It has also allowed me to get off another list that I sent a remove request to some time ago that was not honoured.
   But the majority are from businesses that need to communicate with me as a member of the press. Why they need to verify that I wish to continue on their mailing lists seems a waste of time.
   Of course journalists need to continue receiving press releases, and the Unsolicited Electronic Messages Bill, in its final draft form, provides an exception for them.
   The interpretation part of any legislation is always interesting as you an infer some of Parliament’s intent there. ‘Consented to receiving’ means, inter alia:

consent that can reasonably be inferred from—
   (A) the conduct and the business and other relationships of the persons concerned; and
   (B) any other circumstances specified in the regulations;

It goes on to provide other interpretations of consent, e.g. when an email address has been ‘conspicuously published by a person in a business or official capacity; and’ there is nothing to suggest that the person does not want to be spammed; and:

   (C) the message sent to that address is relevant to the business, role, functions, or duties of the person in a business or official capacity; but
(b) does not include the circumstances specified in the regulations from which consent cannot be inferred

   For those businesses (like ours) that have mailing lists that only includes people that have specifically and expressly requested to be on it, then this Act presents no problems. The only ones where we have compiled addresses are press mailings, covered by the definition of consent.
   It shows that by respecting laws over a decade before they are drafted, we are sitting pretty.
   In fact, I am not sure how this law might apply to us, with the only problem being false addresses that are fed in to our request forms. It does mean that we need to keep more records, which is a burden on honest businesses.
   We, and the many emailing us, may actually have a final out, with the following not qualifying as unsolicited commercial email (UCE):

provides notification of factual information about a subscription, membership, account, loan, or similar relationship involving the ongoing purchase or use by the recipient of goods or services offered by the person who authorised the sending of the message, or the recipient’s ongoing subscription, membership, account, loan, or similar relationship;

which largely covers notices that we send out.
   I wanted an anti-spam law here in New Zealand because I was getting unsolicited junk email from the ACT Party over the course of maybe one year. But when one considers the bigger picture, the majority of spam in New Zealand is not from New Zealanders. The majority is from American, Russian and eastern European countries, often routing through Far East servers. And this act does nothing to prevent them.
   In that frustration, I foresee a rush to judgement by regular people now panicked by all these extra-cautious requests from companies. What if they had signed up to a list and forgot about it? Does this Act now arm them, making them into amateur Perry Masons who believe that they have one up on legitimate, honest companies? Honest people will be pursued.
   In such a case, is it fair to shift the onus of proof on to the sender, when the sender might not have kept records prior to the Act coming in to force of the original subscribe request?
   I believe honest companies can discharge the onus of proof by providing evidence of how their emailing lists are compiled. In our case, we send an initial email, outlining that someone had signed up with that address. We ask the recipient to notify us immediately in case of fraud. Since 2006, we send out two emails to confirm the fact (one acknowledgement, one confirmation) with clear removal and feedback links.
   Sorry, Kiwis, tomorrow will not be a spam-free day. We will receive as many spams about penis enlargements, drugs and porn as we did today. The same SOBs will email us about wins in lotteries we never entered, or ask if we can transfer funds for some ousted African dictator. It targets the wrong people, but then, Parliament cannot exactly enact laws that go outside our borders—and that is where spam mostly comes from.

Disclaimer: don’t just rely on me. Seek legal advice.

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Entries from 2006 to the end of 2009 were done on the Blogger service. As of January 1, 2010, this blog has shifted to a Wordpress installation, with the latest posts here.
   With Blogger ceasing to support FTP publishing on May 1, I have decided to turn these older pages in to an archive, so you will no longer be able to enter comments. However, you can comment on entries posted after January 1, 2010.

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