Question sent in from a blog reader:

“Will it be enough for inferred consent that the recipient is in the same business sector as the marketer?”

Nice try - but the answer (in my opinion) is NO.

Being in the same business sector will not be enough to infer consent unless there is additional conduct or relationship to support the inference.

“Inferred consent arises from the conduct and the business and other relationships of the sender and the recipient. Such relationships giving rise to consent are likely to exist, for example, between a service provider and subscribers to the service. Recently the Federal Court of Australia has observed that it can be reasonably inferred (in the absence of evidence to the contrary) that a purchaser by email order would wish to be kept aware of the business of the vendor. In the case in question the purchaser’s consent to receiving future emails could reasonably be inferred. However, the Court also recognised that whether consent can be inferred from the relationship of the sender and the recipient will always be a question of fact and the particular circumstances.” Source

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A blog visitor raised an interesting question that I thought would be of enough interest to contact the DIA about. I remember that in the Act it does provide the answer but I wanted a more basic guideline from the legal English contained within the NZ Anti-SPAM Act.

The question is around the term “honoring a request to unsubscribe within five working days” - from when?

Below is the email I sent DIA and below that is the response. I must say I am very impressed with the DIA - they provide clear and very detailed responses.

I have a question for you regarding the 5 day business unsubscribe rule.

I have read the DIA business guide and it states on page 6 “..and you must honour a request to unsubscribe within five working days…”

My question is when does the five working business days commence? From receipt of the request? From when the subscriber sent the request?

This is important as even with email sometimes the message does not get through or it is sent to a person who went on holiday for a month and other staff members within the company are still sending the subscriber emails since they have not been made aware of the unsubscribe request.

Another important consideration is when a subscriber sends a unsubscribe request via the post (snail mail) which may take more than 2-3 days to be delivered within NZ (the postal system has failed before).

DIA Reponse (the same day!)

Section 9(2) states that “the recipients consent to receiving a commercial electronic message from the sender is deemed to have been withdrawn with effect from the day that is 5 working days after the day on which the unsubscribe facility was used”.

In effect, the clock starts the day after the recipient used the unsubscribe facility. There is no reference in the Act to the sender receiving the notice of the unsubscribe facility. In fact, section 11(a) directly refers to the principal message including a functional unsubscribe facility that the recipient may use to instruct the person who authorised the sending of the principal message (the sender) that no further commercial electronic messages from or authorised by the sender should be sent.

Therefore, multiple users from one company (sender) would need to ensure that they have a system whereby all unsubscribe requests are actioned within the 5 working day period.

Section 11(c) advises that the unsubscribe facility should allow the recipient to respond to the sender using the same method of communication that was used to send the principal message. If the recipient used a means of communication other than the same method of communication of the original commercial electronic message, and decided to use NZ Post (for example), the five working days would commence from the day the recipient could have expected the unsubscribe notice to have reasonably been delivered. For example, within the same city, 1 day for delivery, rest of the country 2-3 days (I haven’t checked with NZ Post as to expected delivery times, these are just suggestions).

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Another question just came in from a blog reader.

“How can I add an unsubscribe link to all my emails?”

There is another more important question for anyone who has more than themselves in the business:

“How to I manage all the unsubscribe requests coming into my business AND how do I make sure that ALL my staff members are alerted so they do not send the person another commercial email?”

The second question is the most important and I will provide some help to you in that area below.

In answer the first question - if you don’t want to use our Anti SPAM features we provide our clients (click here to read more) then the most simple way is to add a piece of text to your signature stating how the person can unsubscribe from your commercial communication. The DIA business guide for the Anti-SPAM Act provides a couple of examples for the minimal amount of information you need (see resources section below for a link to the business guide). But before you do that - if you have more than yourself in your business then I recommend you read on.

It is vital that you honour a subscribers unsubscribe request within 5 business working days. So with that in mind how can you manage the process of informing all your staff members of the unsubscribe request?

I have written a detailed article on the subject which you can read by clicking here…

DIA Business Guide

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

A question from a NZ based business that wants to use Mobilize Mail for commercial email.

“I have a harvested list of subscribers that I have built up over two years and have emailed them over a 100 times. Can I still send to my list after the 5th Sept 2007?”

Short answer - NO

The Act prohibits any use of address harvesting software OR harvested-address lists in connection with sending electronic messages.

What I recommend is using an Email Service Provide like Mobilize Mail to send each subscriber a re-confirmation email before the 5th of Sept which provides a confirmation link within the email. The email provides information about why they should click the link. If they click the link then you have Express consent - which is great because that person wants to hear from you!

If they don’t then you have one less subscriber.

In this situation I would estimate that he will lose over 80% of his subscribers due to poor bounce management and people just ignoring his 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

We have quite a bit of experience in email marketing and helping businesses with their email marketing strategies especially in the small and medium business sector. This also means we see a lot of how businesses work.

Now the government has been quoted as saying that the cost of compliance is roughly estimated to be up to $2000.00* (and that’s for larger businesses). Okay nice guess but I would like to provide our readers with a hypothetical case study that is actually based on real businesses and how they operate. The costings provided within this document including hourly rates are based on discussions with our own clients as to some of the costs they incur dealing with IT systems within their business.

The purpose of this case study is to show our readers that $2000.00 may be a little conservative in the cost of a small/medium business complying with the Unsolicited Electronic Messages Act 2007 (NZ Anti-SPAM Act).

Background

For the purpose of this case study and privacy of our clients let’s call this business “Acme”.

Acme like a lot of small and business New Zealand business rely on email to communicate with their customers and prospects. Below is a list of email marketing practices that we have seen while conducting compliance audits. We will use these as a basis to calculate the cost of compliance.

1. Acme has 5 staff members who deal with the customers including sending “commercial” email to Acme’s prospects and customers.
2. They all use a their own desktop email clients to send the emails and do not use a centralised electronic address book. Why don’t they use a centralised address book you ask? Because they cannot afford a full time IT person and have a limited budget to spend on IT contractors and third party supplies (does this sound like your business?).
3. Acme has a long standing monthly competition for their existing customers. For the customer to participate in the competition every month all they have to do is send at least one friends contact details that maybe be interested in receiving a promotional discount coupon for their first purchase. The referred friend is normally contacted via email and sent the discount coupon within the email. Acme signs up at least 2 new clients a month using this strategy.
4. At the end of every month they send their entire database a monthly newsletter with discounts and other product related information. The database contains customers and prospects. How Acme fills up their contact database is by way of several methods:
   • They add the customers email address after the first product has been purchased.
   • They verbally ask customers and prospects over the phone or in person if they would like to receive the monthly newsletter. If the person states yes then they are added to the database.
   • Subscription by the Acme web site. When a person subscribes an email is sent to an Acme staff member who then adds it to the contact database. Most of the time the staff member deletes the request email.
   • A person sometimes sends Acme an email or fax to request subscription to the monthly newsletter.

Unsolicited Electronic Messages Act 2007

Jayne who is the director of Acme reads on a website that the New Zealand Unsolicited Electronic Messages Act 2007 will come into force on the 5th September 2007. By then her entire business must have all the systems and processes which deals with commercial emails checked for compliance. And additionally Acme must be able to provide proof of consent for every existing subscriber they email to!

Starting work on compliance

Jayne is starting to think that this is no small project as email is vital for the ongoing sales. Jayne decides to write a list of all the challenges she sees to making sure Acme is complying with the new law. Here is her list below:

1. Work out how to manage un-subscription requests coming in via email, phone and fax.
   • Who is in charge of un-subscribing a person from the mailing lists and making sure it is completed within 5 days of receiving the request?
   • How can all the staff members be informed of the un-subscription so they do not accidentally send the person another email.
2. How do we prove consent for all the existing subscribers? That’s 20,000 email addresses some of which are over 3 years old.
3. How can the un-subscribe facility be added to every commercial email that is sent from Acme? What should the wording be?
4. Are there any systems within Acme that are currently automatically sending out emails with sales content in them like the billing system? Can the sales content still be included?
5. What about the monthly competition deal where existing customers are rewarded for providing contact details of friends?

The costs start adding up

Cost 1

Jayne is lucky enough to find several helpful web sites on the Unsolicited Electronic Messages Act 2007. Jayne quickly learns that she cannot send any person a commercial email without their prior consent. This means that the monthly competition needs to be altered where the referred contact must be contacted some other way than by email and SMS. Jayne decides to try the phone option first. This will add additional charges to Acme’s phone bill as many referrals are national and international.

Cost 2

Jayne is confused about the three different forms of consent in relation to how she can provide proof of consent for all her existing subscribers. Jayne decides not to engage her lawyer to provide direction as the cost would be too much. She instead decides to re-contact all the existing subscribers asking each one to reply to the email if they wish to continue receiving Acme emails.

In order to process the replies she decides to hire a student on an hourly rate to receive all the replies and update a master spreadsheet that contains all the existing subscribers’ details. The existing staff are too overloaded with their existing tasks to also take on this project. Jayne calculates the cost at:

20,000 emails – 8000 (40% failure rate/no response) = 12,000 emails

1000 emails processed in 8 hours = 96 hours

As a side note if Jayne had understood that an Email Service Provider such as Mobilize Mail could have completely automated this tasks for a massively lower amount with zero human error.

Cost 3

In order to work out how to process un-subscribes in the most efficient and cost effective way for Acme Jayne hires a consultant to help her. The consultant charges $120.00 + GST an hour and estimates the work to be around 3-4 hours.

Jayne made the decision to get outside professional help as she was very aware of the fines imposed by government for breach of the Act by not complying with the 5 day requirement to process an un-subscribe request. Since there are 5 staff members who send out commercial email it was vital that a process be in place where all staff members where alerted to the un-subscribe request and to keep honouring the request in all future communications.

Cost 4

To keep costs down Jayne decides to work on the un-subscribe facility requirement herself. She estimates it will take her at least 8 hours to create the right sounding un-subscribe message for the commercial emails and to educate all her staff on how to update their email signatures and how to process an un-subscribe request if the sender receives the request directly. Jayne estimates the cost to the business of lost time while she was dealing with this task at $100.00 per hour for 8 hours.

Cost 5

Jayne is not sure what if any Acme IT systems are sending out emails that could be considered commercial. Her thoughts lean towards the online merchant system which was setup by an external IT company. She is also not sure about the billing system because she vaguely remembers a promotion they had one time that Acme promoted via the billing system emails. She is not sure if the promotional was ever removed. As with the merchant system this was setup by the same external IT company.

Jayne contacts the IT company to get a quote on the cost to check her Acme systems for email compliance. The IT company provides a quote taking into account that the original staff members who configured the two systems for Acme no longer work for the company and no documentation was every kept to help with maintenance. Therefore the quote comes in at 4 hours to check all Acme systems and an additional estimate of 2 hours to reconfigure the systems if required. That is a maximum of 6 hours at $90.00 per hour!

Summary

I have been in IT for over 15 years and with my experience I believe the tasks I have mentioned in this case study are far from complete. There are many additional tasks businesses will need to consider when checking their systems and processes for compliance.

Just look at businesses that are large enough to have marketing, customer service, sales and finance departments. How will they manage to make sure that a person who has un-subscribed from one commercial email is not sent another commercial email from another department within the business?

How can a business process an un-subscribe request when the business has 100’s of different mailing lists for many different types of email communication? Do they do a blanket removal of all mailing lists and risk lost of future income or do they absorb the cost of getting customer service to contact the person to find out exactly what they want to unsubscribe from?

A common occurrence is subscribers details gathered by one department are shared with the other departments resulting in the subscriber receiving commercial email they never directly subscribed to. Marketing is a great one for this practice!

Also consider the cost of re-configuring IT systems where the product vendor is required to make any changes to the system at a huge hourly rate. You maybe surprised to learn that there any many systems within a medium to large business that send out all types of emails without senior management having any idea of the frequency and content of the 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

* http://www.med.govt.nz/templates/MultipageDocumentPage____661.aspx

Interesting… seems that there is a growing opportunity to make an income suing companies that send opt-out email regardless of whether they cause issues with the recipient or not.

I located this article last night about a person in the US that seems to be doing quite well for himself however companies are fighting back (and so they should).

Below is the first two paragraphs from the article. I personally don’t think this will happen in New Zealand as the NZ Anti SPAM law does not allow opt-out emails.

“A U.S. District Court has ordered a Washington state man who sued spammers under the CAN-SPAM Act and lost his case to pay the legal fees of the defendants.

In its decision released last week, the U.S. District Court for the Western District of Washington at Seattle ordered the plaintiff, James Gordon, owner of Omni Innovations LLC, to pay US$111,440 to Virtumundo Inc. in Overland Park, Kan.”

Read more…

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

Hello all,

Details for the road show are below.

Anti-Spam Seminar Schedule

The Anti-Spam seminars are scheduled on the following dates:

• Auckland - Crowne Plaza Hotel, 128 Albert St, Monday 20 August, 10am – 12pm

• Auckland - Bruce Mason Centre, Cnr Hurstmere Rd & The Promenade, North Shore, Tuesday 21 August, 10am – 12pm

• Auckland -TelstraClear Pacific, 770 Great South Rd, Manukau, Tuesday 21 August, 2pm – 4pm

• Hamilton - Kingsgate Hotel, 100 Garnett Avenue, Wednesday 22 August, 9am – 11am

• Rotorua - Quality Hotel Geyserland, 424 Fenton St, Wednesday 22 August, 2pm – 4pm

• Hawkes Bay - East Pier Hawkes Bay, Hardinge Rd Ahuriri, Napier, Thursday 23 August,10am –12pm

• New Plymouth - The Quality Hotel New Plymouth International, Cnr Courtenay & Leach Streets, Friday 24 August, 10am – 12pm

• Palmerston North - Rydges Coachman, 140 Fitzherbert Avenue, Monday 27 August, 1pm – 3pm

• Wellington - Level 28 The Majestic Centre, 100 Willis Street, Friday 31 August, 2pm – 4pm

• Nelson - Rutherford Hotel, Trafalgar Square, Monday 10 September, 10am – 12pm

• Greymouth - The Ashley Hotel, 74 Tasman St, Tuesday 11 September, 10am – 12pm

• Christchurch - Hotel Grand Chancellor, 161 Cashel St, Wednesday 12 September, 9am – 11am

• Dunedin - Kingsgate Hotel, 10 Smith St, Wednesday 12 September, 3.30 – 5.30pm

• Invercargill - Ascot Park Hotel, Cnr Tay St & Racecourse Rd, Thursday 13 September, 1pm – 3pm

• Queenstown - Rydges Hotel, 38-54 Lake Esplanade, Friday 14 September, 10am – 12pm

If you would like to attend, please fill out the seminar registration form available at www.antispam.govt.nz and email it to josie.keating[at]dia.govt.nz

You can also fax the form to 04 495 7224 or send to Anti-Spam Unit, Department of Internal Affairs, PO Box 805, Wellington.

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

The DIA has told me that they will soon be conducting a road show around NZ with Joe Stewart, Manager of the Anti Spam Compliance Unit conducting a presentation on the new Act and answering the sticky questions - I have a few!

The dates and locations are yet to be decided but when they send them to me I will post the details on the blog.

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

Here is a question from a visitor to our blog:

“Is it possible to send sales content in a confirmation electronic message after the recipient has purchased goods or services. even though they have not given express consent?”

The answer in my opinion is “YES” if the confirmation message “confirms” the original transaction, there is credible argument that an electronic message sent after a purchase, is sent with inferred consent, unless of course the recipient has stated that he/she does not want to receive further electronic communication.

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

A couple of days ago I thought I would send the DIA an email asking them to provide me with any guidelines they have related to the unsubscribe facility and sender contact details within text messages.

I have to say that I am very impressed with the response rate of my emails from DIA and the helpfulness.

Below is the second email to DIA. The first was confirming with them something that I add missed in the DIA Anti-SPAM business guide.

Thank you for your speedy reply.

You are correct in that the PDf does provide an example of the Anti-SPAM requirements within a text message. This looks great as I assumed that a contact address/phone number would need to be supplied as well.

If its okay I would like to supply some additional examples for your review and comment. These examples are based around our own clients who will be sending text through our systems as well as commercial email.

As an introduction I work for a NZ based company that provides systems that enable our clients to send commercial email and text in bulk. We have always had strict polices around our clients emailing and management of subscribers. Our systems only support double confirmed opt-in subscriptions. We take the Anti-SPAM Act very seriously and are currently adding extra functionality to help our clients understand and comply with the Act. Therefore the examples below and your responses will be used to educate our clients.

Example 1:
=======================
A nationally based business with branches all over NZ. The name of the fictitious business is “Speedy Cars”.
Now if the following branches of the company (Wellington, Auckland, Christchurch) of “Speedy Cars” were to send out a commercial text message would the following characters be sufficient for the Anti-SPAM Act?

“Speedy Cars: Wgtn. Reply OPT-OUT to unsubscribe”

“Speedy Cars: Auck. Reply OPT-OUT to unsubscribe”

“Speedy Cars: Chch. Reply OPT-OUT to unsubscribe”

The examples above also raise the topic of supported acronyms and abbreviations for common terms and locations. In my example I use “Auck” to denote “Auckland” is this a valid abbreviation? What are the governments guidelines for this?

Example 2
=======================
A nationally based business with a very long business name of “Top Business furnishings to the World”

As you can see this business name is very long – what are the governments guidelines to somehow reducing the business name? Can a common abbreviation used by the company within marketing media be used instead? If so what are the guidelines?


Example 3
=======================
What are the guideless around SMS systems that send text messages that cannot accept replies? For example the business requires that the recipient of the text email to unsubscribe? If this is acceptable I assume some thing like the following could be sufficient:

“Speedy Cars: Chch. Email sender@domain.com to unsubscribe”

Below is the DIA response to my email above:

Hi Marc

Thank you for your questions. I have responded to each example below, and am happy to discuss at any stage if required.

In example 1, commonly used abbreviated place names as described are suitable for identifying the specific location of the sender. The example would be compliant in that respect. Another point you may wish to consider that is not covered in the example is to ensure that the electronic message includes accurate information about how the recipient can readily contact the sender, such as a mobile phone number or business phone number. (s 10(b))

In example 2, the abbreviated use of a companies name is suitable, as long as the abbreviation would allow the recipient to clearly and accurately identify the sender. Organisations like TVNZ (media), VTNZ (warrant of fitness), Sparc (Sports) or NZCT (gaming trust) are known by their abbreviations, so they should not have a problem with abbreviations in terms of s 10, but not many recipients will know who the sender is when they receive a text message from “TBFOTW” (as per the example).

In example 3, an email address used as an unsubscribe function in a text message is not suitable. The unsubscribe facility should allow the recipient to respond to the sender using the same method of communication (s 11(c)). If you send commercial text messages, you must arrange an unsubscribe facility through text messaging and free of charge (unless s11(2) applies).

The thing to remember as well is you will need to add a contact number in as well. See below for confirmation from DIA on this requirement.

Another point you may wish to consider that is not covered in the example is to ensure that the electronic message includes accurate information about how the recipient can readily contact the sender, such as a mobile phone number or business phone number. (s 10(b))

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