Unsolicited Electronic Message Act 2007: New Zealand

Measures taken by New Zealand to Combat Spamming

Discuss about the Introduction Of Unsolicited Electronic Message.

Spam is an “unsolicited bulk email”[1] sent through the process of spamming, these messages are sent to consumers or producers without their consent through the internet and they fills up the inbox of a user with unwanted, illegal, offensive and deceptive messages. “Spamming has been on the rise in New Zealand and all over the world”[2] businesses and the government has sought to use several means to combat this measure which include legislative measure and education and awareness campaign. My company called MMA promotes the use of email, text on the website and telemarketing. We have a new CEO therefore I am going to discuss the Unsolicited Electronic Message Act 2007(the Act) to the new CEO unfamiliar with this act based on a few questions she provided and how the act legislates regarding issues that will be discussed below by problem solving approach.

New Zealand has been in the receiving end of rampant reception of spam messages from inside and outside the country, with most spam in New Zealand coming from outside the country. Email is proving to be fundamental in communication within organizations yet the issue of spam has raised concern due to the nature of materials sent through the internet.

The government of New Zealand sought to deal with this issue of spamming by several measures which included, firstly, “the use of legislation”[3] and regulatory measures which entailed definition of and critical scrutiny of all issues surrounding the issue of spamming to come up with a comprehensive solution on spamming it is through this process that the Unsolicited Electronic Message Act 2007(the Act) was developed[4], secondly there was also self-regulatory measures by Data and Marketing Authority (DMA). Finally, there was conduction of education and awareness campaigns for internet users.

The introduction of legislation such as Unsolicited Electronic Message Act 2007(the Act) was aimed at ensuring that those who engaged in spam faced legal action and that the tarnished name for New Zealand as a safe place for hackers would be changed example in ACMA vs Clarity1 case[5]. Lastly it would be a move towards joining the oversees government in anti-spam campaign to obtain international cooperation in dealing with spamming.   

Is it “opt in” or” opt out”

To deal with spam there have been legislation that, an electronic advertisement or commercial can only be transmitted if the recipient wants such an information. This is called opt-in approach which is mostly “preferred by major legislators who are opposing spam in which the recipient can be asked to increase the number of times of responding to emails just to show their consent”[6].

The Unsolicited Electronic Message Act 2007

Opt-out approach is where the recipient takes an action to show the sender that spam messages are not wanted. This is mostly used by marketing organizations where they send email continuously until the recipient says that they want the messages to stop.

“The Unsolicited Electronic Message Act 2007(the Act) uses opt in approach where the user must provide consent when an email is received to allow the freedom of expression.”[7]

Consent is the process of giving permission to someone to be able to send you their promotions, it is very important because “it is the basis in which a message is classified as a useful mail and a spam”.[8]When a message is sent without one’s permission it leads to “breach of privacy”[9] which discourages sharing of information such as email, SMS, fax or number without consent. Private Act 1993 emphasizes that when personal information is being taken from an individual by an organization the person should be made knowledgeable of the fact that information is being gathered, the intention for which their personal info is collected, the targeted info receiver and correct name of agency gathering the info and that shall hold the info. It goes on to explain that a company should not gather personal info by illegal mechanism or by any strategy that are unfair or intrude irrationally upon the individual dealings of the underlying person.

The retailer collected the email addresses wrongly by manipulation of recipients to provide their emails thinking that they will be updated on the vouchers, The Unsolicited Electronic Message Act 1990 section 15 (2); a person should not induce, whether buy use of threats or promises, directly or indirectly breach section 9 and 11 which talks about a person sending or being involved in sending an unsolicited email. What the clothing retailer has been doing is illegal and a breach of the act because he is using illegal means to obtain email and send unwanted or unintended message with regards to expectation of the user.                                                              

In the case of Anne, the act has been breached. since the act prohibits the sending of emails even in your own mail without consent of the receivers but in this scenario t has been sent without the knowledge of Anne, she can therefore defend herself using section 12(1)(b) of the Unsolicited Electronic Messages Act 2007 that provides defense for those who did not participate in the sending of message rather a malicious program in this case the virus from the hacker is used in sending the message. Anne would have defense with proof hence avoiding punishment from involvement in spam transmission. In the quest to answer this question further questions develop such as the geographical extent of the legislation, the type of message that is prohibited (commercial or all), the nature of message sent (is it an email, SMS, faxes, telephone or physical mail delivery)The Unsolicited Electronic Messages Act 2007 covers transfer of emails largely because “spam is rampant in the internet where even people outside the country can access”[10], the legislation however it does not look into the physical mail delivery that could be related to marketing since it has not been antispam emails are mostly promotional or commercial in nature and understanding that this act is concerned with business law it looks mostly into commercial or promotional  marketing within and outside New Zealand since most of the spam comes for outside the country.

John has breached the act because firstly he has engaged in breach of privacy of the other employees, secondly there was no consent for the CEO that he wanted to receive the email from John concerning his invention and without consent it is spam also assuming that details of John experiment will be bulky.
The Acts set out the requirements for the application of this Act 2007: these are found in s 9(2)(3), s 10(a)(b) and s 11(b)(c)(d)(e)(f).In s.9 the requirements are; a person should not use the New Zealand link in sending emails if the receiver uses the facility not subscribed in s. 11(1)(a) since it implicates that the recipient has officially opted out of the promotional advert or when the person contends to have received a commercial email that has the responsibility of proof not related to such an issue. Requirements in section 10 entail: the electronic message must only be sent with the New Zealand link if it has accurate information on the sender in terms of their details and contact. Section 11 provides the requirement for unsubscribe facility that was a requirement in section 9(2). Unsubscribe facility should be presented in a clear manner, it should allow communication between the sender of the promotion and the recipient the unsubscribe function should above all be functional.

In the case of Moriarty, it is breaching this act because according to the requirements of this law in section 15(b) that warns on the use of induction whether promises or threats to breach section 9 to 11 on the accuracy of information that is produced as a promotional advertisement.

Conclusion

Halpern, Joshua I., Kevin E. Leininger, Randall Dey Toth, and Osbourne A. Shaw. "Information security threat identification, analysis, and management."(US, 2016).

Krishnamurthy, Sandeep. "Spam: A Consumer Perspective: In Revolution in Marketing: Market Driving Changes” (Springer, 2017).

Daegon Cho, Jae Kyu Lee, and Jae-Hyeon Ahn. An Empirical Study on Anti-Spam Legislation. (2016).

Ju, Jaehyeon, Daegon Cho, Jae Kyu Lee, and Jae-Hyeon Ahn. Competing with Spams More Fiercely: An Empirical Study on the Effectiveness of Anti-Spam Legislation. (2017).