The Unsolicited Electronic Messages Act 2007 refers to spam as 'unsolicited commercial electronic messages'. The Act covers email, fax, instant messaging, and mobile/smart phone text (TXT). It does NOT cover Internet pop-ups or telemarketing such as phone calls.
What is a commercial electronic message?
An electronic message is considered spam only if it is commercial in nature - for instance marketing or promoting goods, services, land, an interest in land, an investment opportunity or including a link to the afore mentioned categories. A single message may be spam. The message does not need to be sent or received in bulk.
It is important to note that providing a hyperlink to a company web page in the signature of an otherwise non-commercial email would make it a commercial electronic message.
Which messages are not commercial electronic messages?
The Act provides that the following common messages between organisations and clients/customers are not commercial electronic messages:
Responses to a request for a quote or estimate
- Messages that facilitate, complete or confirm a commercial transaction that the recipient previously agreed to
- Warranty information, product recalls and safety and security information about goods or services used or purchased by the recipient
- Factual information about a subscription, membership, account, loan or similar ongoing relationship
- Information directly related to employment or a related benefit plan in which the recipient is currently involved
- Delivers goods and services that the recipient is entitled to receive under the terms of a previous transaction.
If a message falls into any of the above descriptions then it may not be considered spam and need not meet the obligations for consent, identity and unsubscribe.
Membership organisations typically have a need, which clearly falls outside the provision of the act, to communicate with their members. It is less clear that news communications or event marketing on a regular basis falls into this exemption of the act.
For the avoidance of doubt the following rules can be applied to insure recipients of communication are treated in accordance with the act.
1. Obtain consent
Gain an express consent from the recipient. this can be by filling in a form, ticking a box, or a phone or face to face conversation. A double opt in mechanism can be used to strengthen the consent position form the recipient, this may be by way of an emailed confirmation with an unsubscribe. There are different types of consent - inferred or deemed consent to also consider.
You should ensure any communication clearly identifies who you are and why you are sending the communication.
Give a clear direction for the recipient to be able to unsubscribe, and comply with the instruction within 5 working days.
The Department of Internal Affairs has a great resource for further information, or you can read the act directly here.