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Marketing is a great way to promote your business. This will allow you to attract and retain customers. However, any emails you send cannot qualify as spam in New Zealand, or you risk severe consequences. This article will outline what:

  • is spam;
  • happens if you send spam; and
  • elements a message needs to ensure it is not spam.

What is Spam in New Zealand?

Under New Zealand law, spam refers to “unsolicited commercial electronic messages.” These messages can include: 

  • emails; 
  • fax; 
  • instant messages; and 
  • mobile messages. 

This definition does not include internet pop-ups or phone calls, including telemarketing. 

An electronic message qualifies as spam if it is commercial in nature. A message is commercial when it is promoting or contains a link to:

  • goods or services;
  • land;
  • an interest in land; or
  • an investment opportunity.

A single message can be spam. Spam does not need to be many or hundreds of messages. Additionally, these messages do not need to be sent in bulk or to many people at once to still be spam. 

The law surrounding sending spam also applies to the government and its agencies. However, messages sent by government bodies or Crown entities are not commercial electronic messages if they relate to goods or services offered by a government body.

What Happens if I Send Spam in New Zealand?

The Unsolicited Electronic Messages Act prohibits spam in New Zealand. This includes messages to, from, or within New Zealand. Failing to comply with this act can result in a fine of up to $500,000. 

How Do I Know if a Message I Am Sending is Spam?

Not every message is a commercial electronic message. For example, some messages that are not commercial include:

  • sending through a requested quote;
  • the confirmation of a commercial transaction that a customer previously consented to;
  • information about a product that the recipient purchased, like warranty or security information; and
  • information relating to a subscription that the recipient has signed up for. 

There are three main elements of a message that will determine whether or not it is spam. These are:

  • consent;
  • identity; and
  • a working unsubscribe function. 

Consent

There are many different messages that are not spam. However, the general premise is that your customers have already consented to receive these messages. You can only legally send a commercial electronic message if approved by the person receiving the message. Someone can agree to this by:

  • filling in a form that provides their email address;
  • verbally consenting, in person or over the phone; or
  • ticking a box on a website. 

You cannot gain a customer’s consent by sending them an email with an unsubscribe option and assuming their agreement to receive further messages if they do not unsubscribe. You would need a prior confirmation to send them this initial email. Essentially, the silence of the recipient does not qualify as consent. You will need explicit permission from the people to whom you are sending messages. 

Verbal consent is permissible so long as you have a record of the consent. If the recipient later challenges whether or not they provided consent, you must offer proof of consent as the sender.

There are some cases where you can rely on inferred consent. Messages that may not qualify as spam could include those where the recipient has:

  • signed up for a subscription;
  • purchased a product; or
  • requested information.

If your product or service has created a relationship between you and your customer, then it is reasonable to rely on inferred consent due to the nature of the relationship. Such a relationship may exist if you provide a subscription or ongoing service. However, if you rely on implied consent, you should identify why you are sending the message and provide a clear unsubscribe function. 

Identity

You need to identify yourself as the sender clearly. This includes the name and contact details of your name or business name. 

Unsubscribe Option

You must ensure that an unsubscribe link is evident and easy to access. Additionally, this link (or another method to unsubscribe) must be functional and entirely free. Furthermore, you will need to action a request to unsubscribe within five working days. You can ask the person why they have chosen to unsubscribe from your emails within five working days, but you cannot force someone to tell you. Additionally, you cannot send someone a message after five days, as you no longer have consent to send them any communications. 

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Key Takeaways

Using electronic methods can be a great way to promote your business. However, you need to ensure that your electronic communications are not spam, or you may face severe legal penalties. 

If you need help with understanding how your business can send electronic messages without sending spam, our experienced eCommerce lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0800 005 570 or visit our membership page.

Frequently Asked Questions

Can I send messages anonymously?

No, you need to identify yourself clearly in any commercial messages you send. Otherwise, you run the risk of legal penalties.

Can telemarketing be spam?

Phone calls are not considered spam in New Zealand, and therefore telemarketing calls are also not considered spam. However, there are still legal requirements for telemarketing that apply.

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