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Navigating the anti-spam minefield

Anyone sending commercial electronic messages needs to comply with the Unsolicited Electronic Messages Act 2007. This law is enforced by the Department of Internal Affairs, which also enforces gambling laws etc. The law applies to: · Electronic messages: email, text messages (SMS), instant messages,and facsimile messages (faxes) that are · Commercial i.e.: promoting a product, service, business or investment opportunity. The law says that when you send a commercial electronic message: · The person receiving it must agree to receive your messages. · You need to clearly and accurately say who you are as the sender. · There must be a clear and easy way for the person receiving your commercial electronic messages to unsubscribe or stop receiving them. The law also says that you cannot use software to collect addresses to send commercial electronic messages that people did not agree to receive. I.e. no scraping! Your questions are answered below!

Can you establish consent by emailing your existing customer database asking them to unsubscribe if they don't wish to receive messages? A commercial electronic message may only be sent if the recipient has consented to receive it. If you don’t think that the recipient has consented then the “click here to unsubscribe” type of email cannot establish consent for future purposes. Many recipients may treat it as spam and not respond or even open it. There is no real relationship when the communication is one-sided and the recipient's silence should not be taken as acquiescence. Can organisations send electronic messages to obtain or confirm consent from people on existing electronic databases? For the majority of an existing list of customers you will often have proof of consent and it is unnecessary to send a message requesting that they confirm that consent. However, there is often a small percentage for which you are unsure whether you have consent. If you are contemplating emailing a customer database to confirm consent, consider carefully the wording of the message.

Is verbal consent okay and do I have to keep a record of it?

Yes, verbal consent is okay. There is no obligation in the Unsolicited ElectronicMessages Act for the consent to be in writing. However, it is advisable to keep a record of verbal consent. If a complaint is ever laid the onus of proof of consent is on the sender of the message (as stated in section 9(3) of the Act).

Does receiving a business card from someone count as ‘inferred consent’ to include them in an email newsletter distribution list?

That would depend on the circumstances of the business card swap.

‘Inferred consent’ in the context of supplying a business card primarily relates to the development of a relationship between the parties. Inferred consent would only apply if the electronic message sent specifically related to the relationship that had developed at the time a business card was supplied.

For example, if A and B exchange business cards during a business type meeting, general consent would be inferred between A and B that they agree to receive electronic messages from each other that relate specifically to the meeting or generally to A and B’s business. The content of the information shared can be limited or extended by A and B (i.e. you build your consent according to what information you want to receive).

It is unlikely that an intended outcome of a person handing out their business cards would directly lead to them receiving commercial electronic messages that in no way were attributable to the original circumstances where the cards were furnished.

If I have swapped business cards with someone and am sending them commercial electronic messages do I have to keep all the business cards as proof of ‘inferred consent’?

You will need to keep proof of the consent in some form. Over time the on-going correspondence becomes evidence of a relationship and you won't have to keep the business card.

If I send media releases out to newspapers on topics likely to be of interest to their readers do I need to ensure my media contacts opt in?

If it can be inferred from the business of your media contacts that they agree to receive your media releases, you might have inferred consent to send it. If you are not sure, write to them and get their express consent.

Consent may also be deemed if the media contacts address is conspicuously published (i.e. website, newspaper) and the message is relevant to them.

How long can my business rely on inferred consent in a business relationship? For example, if I make one transaction with a customer, can I continue to send them promotional material one year later? Five years later?

We don’t consider that you can reasonably infer consent from a single transaction. If you wish to send a customer with whom you have had one transaction marketing and promotional material you should seek their express consent.

The Unsolicited Electronic Messages Act states that an electronic message that facilitates, completes or confirms a commercial transaction the recipient previously agreed to is not a commercial electronic message. You could use the sending of these electronic messages as an opportunity to seek express consent to send promotional material in the future.

If you have any more questions about this please do get in touch.

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