Consent - Opt-In or Opt-Out
Should New Zealand adopt an opt-in, double opt-in or opt-out approach in legislating against spam? Why?
18. Most respondents preferred an opt-in approach, with a few preferring double opt-in.
19. The respondents who wanted an opt-out approach were mainly concerned with being able to legitimately and cost effectively market or provide information on their products and services to their customer base. They felt that an opt-in approach places "the lion's share of the compliance burden on legitimate businesses which have nothing to do with the spam problem". It was also argued that opt-out preserved email as a key contact tool for vendors, who would not (unlike spammers) risk irritating customers with excessive emails. Opt-out supporters also argued that opt-out provides a more definitive approach to consent compared to opt-in, which produces grey areas with concepts such as inferred consent.
If an opt-in or double opt-in approach was to be adopted, what should amount to express consent and what actions and/or relationships should amount to inferred consent to the sending of a "commercial" electronic message? How should the scope of any opt-in or double opt-in assent be framed?
20. Many differing views were received to these questions - however, most are variations on basically the same approach or different ways of expressing the same approach. This highlights the fact that the issue of consent and in particular, the wording of legislation with respect to consent, will be one of the most difficult aspects of effective anti-spam legislation.
21. Many said that the Australian legislation provides a useful starting point. Consent could involve one or more of the following concepts put forward in submissions:
- Express consent and inferred consent;
- The sender has "reasonable grounds" for believing that a recipient has consented;
- The recipient has a means of opting out of future mailings, even where the recipient had given explicit consent;
- There is a relevant pre-existing business or personal relationship between the sender and recipient.
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