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How you decide to market your business can greatly impact how customers find you and decide to continue using your business. A popular method of outreach is email marketing. Emails like newsletters or promotional notifications can be a useful way to maintain customer interest, and update your customers about business runnings. Email marketing campaigns can become a problem when they cross the line and become spam, which is against the law. This article will outline when email marketing can turn into spam and outline some important legal considerations in this area.

What Are Unsolicited Electronic Messages?

In New Zealand, it is illegal to send spam to your customers. In legal terms, this means that you cannot send them unsolicited electronic messages. Even a single electronic message can come under this concept. This only applies to commercial messages that have been sent through a telecommunications service to an electronic address, such as emails or texts. This includes messages that market or promote:

  • goods or services;
  • land or interests in land;
  • opportunities to gain a financial advantage dishonestly;
  • business investments or opportunities; and
  • links to other messages containing the previous options.

However, not all messages that your business will send to your customers will be ‘commercial’ in anti-spam law. These would include emails that have content that is more administrative and specific in nature, such as:

  • responses to a request for a quote or estimate;
  • messages that complete previously agreed to commercial transactions;
  • warranty and security information about goods and services previously purchased;
  • factual details on already agreed upon subscriptions, memberships, loans, or accounts;
  • information about an employment plan or benefit plan that your recipient is already involved in; and
  • delivery fulfilment of goods or agreements from a previous purchase.

Anti-Spam Obligations Around Email Marketing

You can still send your customers commercial electronic messages, but there are a few requirements you need to follow to make sure you are doing so legally. Otherwise, you can be seriously penalised. You can be fined $200 for each time you send an unsolicited message, which can accumulate to a total of $500,000. If there is a chance that your email marketing is unsolicited, then you have to prove under the law that it is not. Each email also needs to include a current contact address for your business, that has to be a New Zealand address. 

Your primary obligations to make sure that you are not sending unsolicited emails are:

Consent

If the person you are sending your email to has consented to such marketing emails, it is not unsolicited. There are three different kinds of consent in this context:

Express Consent

This is when subscribers have given explicit consent to be sent marketing emails like email newsletters. This could perhaps be indicated through a tickbox after an online purchase from your business. Verbal consent can also count, but it is beneficial to have a record of it.

Inferred Consent

Inferred consent is when you can logically infer consent for some communications from the already existing business relationship you have with the customer or recipient. Examples include customer service evaluations or email reminders.

Deemed Consent

When you can logically infer consent for some communications from the already existing business relationship you have with the customer or recipient. Examples include customer service evaluations or email reminders.

 

An Option to Unsubscribe

In your marketing emails, you also have to provide a clear way for recipients to unsubscribe from future email correspondence. If they choose to exercise this option, you have to remove them from your mailing list within five days. You also cannot use email list harvesting software to source your contactable email addresses for potential customers. It is also beneficial to link your privacy policy in your emails so that people can see what information of theirs you retain and how you use it.

Your process to unsubscribe needs to be functional and obvious. A possible method could be a clear unsubscribe link at the bottom of your email that links to a preference centre where customers can customise what emails they receive.

Key Takeaways

Email marketing can be a useful way to maintain customer engagement, but you need to be careful not to cross the line to become spam. You can do so by ensuring that you have consent from customers to receive marketing emails, and have a straightforward process for customers to unsubscribe if they wish. If you would like more information or help with your email marketing scheme, contact LegalVision’s regulatory and compliance lawyers on 0800 005 570 or fill out the form on this page.

FAQs

What is email marketing?

Sending newsletters to your customers or sending promotional emails to potentially interested parties is email marketing. It can be a good way to generate and maintain customer interest, but you have to be careful that it is not unsolicited spam.

What is the difference between email marketing and spam?

Email marketing can become spam when it is unsolicited. This means that you do not have someone’s consent to send these emails, or it cannot be assumed that they would consent based on your existing business relationship.

Do I need to provide an option to unsubscribe?

Yes. In all email marketing, you need to include an option for recipients to unsubscribe from any future emails. This is usually done through a link at the bottom of the email, which sends recipients your website so that they can edit their email preferences.

Do I need permission to send marketing emails?

Yes, you do need permission from recipients to send marketing emails. But, in some cases, this permission can be inferred or deemed from the context of your relationship. 

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