When we look at the court case over in Perth Australia against Clarity1 Pty Ltd (”Clarity1″) and the managing director, Mr Wayne Mansfield (”Mansfield”) who were both prosecuted for spamming we can see that Clarity1 argued that all emails contained an unsubscribe facility and of the 166,000 unsubscribe requests, all were acted upon by Clarity1. They also argued that if the recipients of the emails did not wish to utilise the unsubscribe facility they had obviously consented to receiving messages.

You may not know but Clarity1 and Mansfield were both found to be breaching the Australian Anti-SPAM act and fined 5.5 million dollars (AUSD)!

So in New Zealand if we apply this court case to our own NZ Unsolicited Electronic Messages Act (The NZ Act is very similar to the Australian Act) we can see that there is no chance of having the same reasoning when sending subscribers commercial emails without prior consent. The fact is you must have prior consent to send any commercial email to a person – full stop.

What’s even more terrifying was an additional challenge identified by our legal advisor Chapman Tripp in an article published on Mobilize Mail – extract below:

“There are a number of fishhooks in the new legislation that will need to be specifically addressed. The Act affects not only those who send the commercial electronic messages but also those who are directly or indirectly knowingly concerned in the sending of them. However, telecommunication service providers are not caught by the new legislation merely by the fact of their providing telecommunication services that enable the electronic messages to be sent.”

Click here for full article

Do you understand how scary that is? Basically if you have more than 1 person in your business there must be processes in place to full monitor who is sending out commercial emails and who has approval to. So my understanding is that if your staff member sends a non compliant commercial email to someone you as the business owner are in breach of the Act.

Does that sound correct? Well, who is going to risk challenging the NZ government who will have much deeper pockets that you.

We have created a number of processes both manual and electronic that can help a business manage the control of commercial email going out the door.

Anti Spam Compliance Solutions For You & Your Business

To see how we can help you and your business comply with the NZ Anti-SPAM Act click here

Talking to some of our clients about the New Zealand Unsolicited Electronic Messages Act one question we find always comes up is the following:

‘Before the Act comes into force, do I need to be sure I have some kind of consent before sending a commercial electronic messages to clients, even if they are already on my mailing lists?’

The answer is YES. Before you send any emails after and during the 5 September you must be able to prove consent (express, informed or deemed). This is why its absolutely paramount that all businesses look at their mailing lists and confirm consent for each subscriber. Its not as easy as you think and we have been working closely with a number of our clients on this.

One of the features we have available to our clients who use the Mobilize Mail software to manage their email campaigns is a reconfirmation facility which sends all subscribers within their account an email asking for reconfirmation of the subscription. If the subscriber wishes to continue with the subscription they must click a link within the email thus confirming their consent (which is recorded against their subscription account). This process may sound scary and it could be as the practice has been known to cut mailing lists by up to 80% but what the client has at the end is a mailing list with consent recorded and just as important 100% interest in your emails!

Anti Spam Compliance Solutions For You & Your Business

To see how we can help you and your business comply with the NZ Anti-SPAM Act click here