Reading time: 5 minutes

Marketing is vital to almost every business as they grow and scale up their operations. There are many different marketing strategies to pinpoint likely customers or clients and encourage them to try out your business. However, there can be significant confusion in terms of what you can and cannot do. New Zealand has both privacy and anti-spam laws. Having a working knowledge of these can help minimise the chance of your business breaching them.

This article will explain what the Privacy Act and anti-spam laws mean for your business’ marketing, and some tips on ensuring you stay on the right side of the law. 

When Does the Privacy Act Apply to Marketing?

The Privacy Act, containing New Zealand’s main rules for information privacy, applies to all businesses and organisations. All information that your business holds about a person or group of people may be regulated by the Privacy Act. This is the case, even if they are not clients or customers at that point in time. If the information is publicly available, the Privacy Act has special provisions designed to protect the use of that information. 

Given this context, it is not surprising that the Privacy Act does not provide any specific controls on marketing. However, the general principles of the Privacy Act will apply. From a business perspective, you should understand whether your marketing strategies or approaches (like a direct mail list) comply with the use and disclosure requirements for personal information. Information such as the below is personal information: 

  • an email address; 
  • a telephone number; and
  • a physical address. 

Whereas, information such as the below can be personal information if you can link this to other information which makes an individual identifiable:

  • general location information; or 
  • Information around preferences.

What Happens if I Accidentally Breach the Privacy Act?

If someone thinks that your business has breached the Privacy Act in some way, there is a set process that can occur:

  • the complainant, if they feel their privacy was breached, can ask to speak to your organisation’s privacy officer; 
  • if they are not satisfied with your organisation’s response, they can complain to the Office of the Privacy Commissioner. The Office will ask them to fill out a complaint form. This form asks how they think their privacy has been breached and how they have been affected. Likewise, they must specify how they would like the complaint to be resolved; and
  • the Office of the Privacy Commissioner may then investigate the complaint and your business. If you work with them to resolve the complaint, they will usually look to secure a settlement after mediation. 

What Do New Zealand’s Anti-Spam Laws Mean for Marketing?

The key New Zealand anti-spam law is the Unsolicited Electronic Messages Act. Unlike the Privacy Act, this anti-spam law clearly aims to regulate business’ marketing operations. Hence, it is important to understand how this law will affect your business’ marketing operations. The law has three aims related to marketing:

  • requiring commercial electronic communications (such as emails) to contain a functioning unsubscribe option and identify the sender;
  • ensuring those communications are sent only to people who have consented to receive them; and
  • restricting the use of address-harvesting software. This refers to dedicated, sophisticated software that ‘scrapes’ the internet or other information sources for customer data. In general, you cannot use this software in New Zealand.

There are penalties for companies who breach the electronic anti-spam laws, with fines of up to $500,000.

Note that the anti-spam laws in this article refer to electronic marketing, but other New Zealand rules relate to other types of marketing, like marketing phone calls. 

There are some fundamental tactics to implement to ensure your business does not breach New Zealand’s anti-spam laws. These include:

  • ensuring you have consent to send any electronic marketing messages;
  • ensuring that any emails or other electronic marketing messages your business sends contains a functional unsubscribe function within the message (enabling the recipient to freely and easily opt out of any further messages); and
  • including information about the sender of the message, including their contact details.

Key Takeaways

From a marketing perspective, two of the key laws to be aware of in New Zealand are the Privacy Act and the Unsolicited Electronic Messages Act. They regulate different aspects of marketing. If you are holding personal information that can identify a person, the Privacy Act regulates how you can use it through information privacy principles. On the other hand, the Unsolicited Electronic Messages Act directly affects the emails and other electronic communications your business may want to send out. Make sure your emails have an unsubscribe button and that, you have consent to send the message and you include information about the person sending the email. 

If you want to know more about how privacy and anti-spam laws may affect your business’ marketing, contact LegalVision’s privacy lawyers on 0800 005 570 or complete the form on this page.

FAQs

Does the Privacy Act apply to direct marketing?

Only when the marketing is based on “personal information”, meaning information about an identifiable individual. If you cannot use the information to identify a person, the Privacy Act will not apply.

Does the Unsolicited Electronic Messages Act apply to direct marketing?

Yes, the Unsolicited Electronic Messages Act applies to all electronic marketing like emails and text messages (but not phone calls, which is regulated by other rules). Most direct marketing in New Zealand is conducted over email and must follow the Unsolicited Electronic Messages Act anti-spam law.

Is it a legal requirement to have an unsubscribe button on my business’ emails to an email list?

Yes, it is, if the message is commercial in nature, meaning it markets or promotes goods, services, land, an interest in land, or an investment opportunity. There are exceptions for non-marketing messages such as service messages, like an order shipment email and for select government bodies, courts and tribunals.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards

  • 2019 Top 25 Startups - LinkedIn
  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards