Enforcement
Who should be able to bring an action against an alleged spammer?
28. Most respondents recommended an appropriate government agency and ISPs as those who should be able to initiate action. Some ISPs, however, were concerned that a provision which allows them to sue may result in pressure on them from customers to take potentially costly legal action.
29. Some said anyone who has suffered damage or loss by a spammer's activities should be able to take action, but it was pointed out that in reality, individuals generally will not have the resources to do so.
What agency should have the enforcement role under the legislation?
30. There were mixed views. Some named the Commerce Commission or Department of Internal Affairs, while some suggested a Government-funded industry-run agency. This agency would handle complaints, education, codes of practice and powers of adjudication in all but the most serious cases. Major breaches of the legislation would be referred to an existing Crown agency for prosecution or search warrants. Some respondents had no view on what the enforcement agency should be but stressed that the agency must be adequately and appropriately resourced and funded, and be aggressive in its enforcement.
What should be the available penalties and remedies for breaches of anti-spam legislation and what should be the maximum fine or pecuniary penalty?
31. Most respondents recommended escalating pecuniary penalties depending on the severity of the breach. The penalties also should be commensurate with those under the Fair Trading Act and Commerce Act. It was also suggested that monies earned from, and equipment used in, spamming could be seized.
Should contraventions give rise to criminal or civil penalties?
32. Most respondents recommended civil penalties, but some said both, as some spamming activity could be fraudulent or malicious.
Should the responsible enforcement agency be given the ability to obtain search warrants conferring powers of entry, search and seizure?
33. Almost all respondents replied yes, and some emphasised that searches should only be authorised by judicial warrant.
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