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Marketing and promotions are an essential part of your business’s success. However, there are certain restrictions on how your business can conduct its promotional activities. In New Zealand, you cannot send spam with a New Zealand link as you may face financial penalties. This article will outline:

  • what is spam;
  • what marketing or messages will not come under the definition of spam; and 
  • how your business can avoid spamming your customers.  

What Is Spam?

Spam, or an unsolicited electronic message, is a commercial electronic message that the recipient did not consent to receiving. These messages can be:

  • emails;
  • faxes; 
  • instant messages; or
  • mobile text messages. 

Internet pop-ups or telemarketing, such as phone calls, are not part of the definition of spam.

These messages have to be commercial in nature to count as spam. That means that the message must market or promote a:

  • good;
  • service;
  • land or interest in land; or
  • an investment opportunity, or contain a link to one of these categories. 

The message will still be spam, even if these goods or services are free.

A singular message sent to one person can count as spam. The message does not have to be sent or received in bulk.

What Is Excluded From the Definition of Spam?

There is a range of messages that the definition of commercial electronic messages does not include. These are messages that:

  • provide a requested quote for the supply of goods or services;
  • facilitate a commercial transaction that the recipient agreed to enter into with your business;
  • provides warranty, product recall or safety information about goods or services that the recipient purchased from your business;
  • include factual information about the recipient’s ongoing subscription, membership or account loan to your business or your business’s services;
  • provides information about an employment relationship that the recipient is in;
  • delivers goods or services, such as an upgrade, that the recipient is entitled to from a previous transaction with your business; or
  • provides the recipient with information about goods or services supplied by a government body, court or tribunal. 

If your business’s electronic messages fit into one of these categories, it is not spam. 

How Can My Business Avoid Spamming Customers?

There are ways in which your business can send commercial electronic messages that are not illegal spam. You must ensure that your business’s messages contain the following, to ensure it does not constitute spam.

Customer Consent

You may only send a commercial electronic message to recipients that have consented to receive the message. In New Zealand, this consent may be express, inferred or deemed. However, it is best practice to receive express consent from a recipient to ensure that your business is not sending illegal spam.

To get express consent from recipients, you may:

  • ask customers if they would like to fill in a form when they are purchasing goods or services from your business in-store;
  • have a box available on your website that customers can tick. You may wish to use a ‘double opt-in’ for this method of obtaining consent. A double opt-in involves sending an email to the customer once they have ticked this box. This email contains a link that, when clicked, completes the subscription process and allows for your customer to receive promotional material from your business. A double opt-in ensures that all recipients have expressly consented to receive material from your business; or 
  • ask a customer during a phone call or in a face-to-face conversation. 

It is best practice to keep a record of all instances where individuals have consented to receive commercial electronic messages from your business. These records should contain the name of the individual and how they provided their consent. 

Accurate Identification

Additionally, you must clearly articulate that your business is responsible for sending the message to the recipient. If you are using a third-party provider to send messages on behalf of your business, you should identify this.

Regardless of whether you or a third-party is sending the message, each commercial electronic message should detail how your business can be contacted. This contact information should be accurate for a period of 30 days after the message has been sent to the recipient. 

Unsubscribe Facility

You must also include a link, button or contact that allows the recipient of the message to revoke their consent and stop receiving promotional material from your business. This link or button is known as an unsubscribe facility. This unsubscribe facility must be:

  • easy to use;
  • clearly accessible by the recipient; 
  • free of charge; and 
  • in the same medium of communication in which the original message was sent. For example, if you send promotional material over email, it will not be permissible to require recipients to text your business to unsubscribe.

Once a recipient has unsubscribed from receiving these messages, you must honour this cancellation within five working days. 

Key Takeaways

Sending marketing material over email or through text messages can be an effective way to promote your business. However, you must ensure that you do this properly, to avoid spamming your customers. Sending spam in New Zealand is prohibited and may result in your business having to pay a hefty fine. To avoid spamming your customers, you must ensure your commercial electronic messages:

  • are consented to by the recipients;
  • accurately identify your business; and
  • contain a functioning unsubscribe facility. 

If you are unsure whether your messages constitute as spam, contact LegalVision’s IT lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

What is spam?

Spam, or an unsolicited electronic message, is a commercial electronic message that the recipient did not consent to receiving.

What counts as spam?

Spam can be emails, faxes, instant messages or mobile text messages.  

How can my business avoid sending spam?

Your business must ensure these messages are consented to by the recipients; accurately identify your business; and contain a functioning unsubscribe facility.

Is sending spam illegal? 

In New Zealand, sending spam is illegal. 

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