Legislative Scope
What message mediums should be caught by the legislation?
9. Many respondents said that legislation should be technology neutral, but most felt that electronic media, especially those which involve little costs to the sender and/or the burden of costs falls upon the recipient, should be the focus of legislation. The feedback from most submissions and the InternetNZ workshop was that email, instant messaging and text messaging should be covered, while faxes, telemarketing and physical mail delivery should not.
Do the messages caught by the legislation have to be sent/conveyed to many recipients, and if so, how many?
10. Almost all respondents thought that the number of messages sent was irrelevant - the issue of concern is consent, but that the multiple/bulk aspect of spam should be addressed in the penalty provisions of legislation.
Should the messages caught by the legislation be of a commercial and promotional nature only or should other types of messages be caught? Should there be exceptions and if so what should be exempted?
11. Most respondents felt that the definition "unsolicited messages of a commercial or promotional nature" is a good starting point.
12. Some defined "promotional" widely to also include messages from political, religious, and charitable (and pseudo charitable) organisations. Others broadened the definition even further to include any unsolicited message.
13. Some businesses believe that it is crucial that the content of spam should be defined narrowly, so as not to inadvertently capture normal business communications. It was suggested that the above definition could be narrowed, for example, to "unsolicited messages of a commercial or promotional nature where no prior consent or relevant relationship exists".
14. It was also submitted that any definition of spam will need to be cast so as not to infringe upon the Bill of Rights which provides that "everyone has the right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind in any form".
15. All but two respondents did not want any exceptions.
Should the legislation extend to coverage of acts done overseas? If so, what acts should be covered?
16. All respondents said yes, and that the Australian legislation provided a useful model. One respondent did, however, highlight that the extraterritorial impact of legislation in Australia and the potential conflict of laws have created a few problems for Australian corporations and their subsidiaries, for example, offices in the UK must comply with both Australian and EU legislation.
Should all parties involved in the act of spamming, such as the vendor sponsoring the spamming, be covered by the legislation? Should there be express exceptions such as for telecommunications companies and ISPs?
17. The response was a unanimous yes. Most respondents exempted telecommunications companies and ISPs, and some mentioned email marketing companies, if they unwittingly conveyed spam. However, any telecommunications companies and ISPs knowingly involved or reasonably expected to know that spamming was occurring, would not be exempt from legislation.
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