On September 5 2007, the Unsolicited Electronic Messages Act 2007 came into force. The Act prohibits the sending of unsolicited commercial electronic messages with a NZ link. It also requires all commercial electronic messages to include information about who authorised the message and to provide a functional unsubscribe facility. Finally, it prohibits address-harvesting for the purpose of unsolicited commercial messages. What follows is a general summary of the legislation and its impact upon the University of Otago. Legal advice should be sought for a formal interpretation of the specific provisions of the Act.
This site answers a number of questions relating to this Act, and provides some recommendations as follows:
Unsolicited Commercial Electronic Messages
To be 'spam' which can be dealt with under the Act's enforcement provisions, there must be the following conditions:
- An electronic message
- The message must be commercial
- The message must be unsolicited (sent or attempted sending without the consent of the recipient. Consent can be express, implied or assumed)
- The message must have a New Zealand link
These are explained below.
What is an electronic message?
Email, instant messaging, SMS, multimedia messaging services are covered by the Act. It does not cover voice calls (real, recorded or synthetic) or facsimiles.
What is a commercial electronic message?
A message is commercial if it:
- Markets or promotes good, services, land, interests in land, or business or investment opportunities
- Assists/enables a person to obtain a financial advantage or gain from another
- Provides a link/directs a recipient to a message that does either of the above
A message is not commercial if it:
- Contains quotes or estimates requested for goods and services
- Relates to ongoing commercial transactions agreed to by the recipient
- Provides warranty, security information or similar notices for products or services obtained by the recipient
- Provides factual information relating to subscriptions, memberships, accounts, loans or other similar relationships involving the recipient's ongoing purchase or use
- Provides information relating to the recipient's current employment relationship or related benefit plans
- Delivers goods or services (including product updates or upgrades) the recipient is entitled to under a transaction entered into
- Provides information about goods or services provided by a government body (which includes Universities) or courts and tribunals
When is a commercial electronic message unsolicited?
When the recipient has not consented to receiving the message.
What is consent?
- Expressly agreeing to receive electronic messages (e.g. signing a form to that effect, ticking a website box, oral agreement)
- Consent inferred from business or other relationship (e.g. providing an email address, exchanging business cards)
- Consent assumed by the Act from the conspicuous publication of an electronic address in a business or official capacity where there is no explicit statement that the address holder does not want to receive unsolicited electronic messages at that address and where the message relates to the holder's business or official capacity
What is an electronic address?
An email account, instant messaging service, telephone account or similar account.
What is a New Zealand link?
A New Zealand link is present if the message originates in NZ, or the sender is in NZ, or the computer/server/device to access the message is in NZ, or the recipient is in NZ, or the message is sent to an .nz address or a +64 international access code.
Sender's obligation to provide accurate contact sender information and unsubscribe facility
Any commercial electronic message (sent with or without consent) must clearly and accurately identify the person who authorised the sending of the message and provide accurate contact information. It must also contain an unsubscribe facility allowing recipients to be removed from the distribution list without cost to the recipient.
Restriction on use of address-harvesting software and harvested address lists
Individuals and organisations in New Zealand must not use address harvesting tools and lists of addresses in connection with or with the intention of sending unsolicited commercial email addresses (whether or not the harvester is the sender of such messages or sending is by another person or organisation).
The Act and the University of Otago
The University may continue to send electronic messages to staff and students, providing the message relates to information about University provided goods and services or information about an employment relationship or a related benefit plan. While not required by the Act, (as these messages are not classified as commercial) accurate information about the person authorising the sending should be included, as a matter of good practice.
Electronic messages to alumni and other parties are similarly permitted, again as long as the contents relate to information about University provided goods and services. Again, while not required by the Act as these messages are not classified as commercial, it is recommended that both accurate sender information and an unsubscribe facility be provided in relation to such messages, as a matter of good practice.
Staff and students are not permitted to send any commercial electronic messages via Blackboard or any electronic address list operated by the University.
It is recommended that the following notice be placed on all University web pages that list electronic addresses in order to prevent their publication being assumed by law as consenting to the receipt of unsolicited electronic messages to such addresses:
Electronic addresses (including email accounts, instant messaging services, or telephone accounts) published on this page are for the sole purpose of contact with the individuals concerned, in their capacity as officers, employees or students of the University of Otago. Publication of any such electronic address is not to be taken as consent to receive unsolicited commercial electronic messages by the address holder.