Minister Unveils Proposed Anti-Spam Law Proposal - 23 February 2005
[ Last Updated 14 October 2005 ]
Media Statement from Hon David Cunliffe, Minister for Information Technology.
Information Technology Minister David Cunliffe today unveiled the shape of forthcoming legislation to combat spam.
"The Unsolicited Electronic Messages Bill will be an important step in the war against spam" Mr Cunliffe said.
"The legislation will complement codes of practice, technical measures and consumer education to help fight the deluge of spam. It will also help New Zealand's efforts to address this problem at an international level."
The Bill will apply to emails, text messaging and instant messaging services by requiring that the sending of multiple commercial electronic messages of a marketing nature over these services be made only to recipients who have opted-in to receive such messages. Senders of promotional electronic messages will be required to abide by requests from recipients to opt-out of further mailings.
The Bill will also set out requirements relating to accurate sender identification and the provision of an unsubscribe facility.
The maximum penalties under the Bill of $500,000 for organisations and $200,000 for individuals are designed as a deterrent to professional spammers who might be looking to operate from New Zealand. It is proposed that enforcement of the legislation will be conducted by the Department of Internal Affairs, which already has expertise in enforcing legislation relating to electronic content.
"While this Bill alone will not solve the problem of spam it is an important step alongside other measures to ensure New Zealand is not a soft target for spammers," Mr Cunliffe said.
Copies of the cabinet papers setting out the policy recommendations for the legislation will be made available on the Ministry of Economic Development website.
Contact: Julian Kersey, Advisor, 04-471 9116, 021-811 999, julian.kersey@parliament.govt.nz
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Q&A for Proposed Spam Legislation
Q. Why is the Government proposing to legislate against spam?
A. The Government is proposing to legislate against spam as part of a wider strategy designed to curb the growth of spam in New Zealand and provide a basis for New Zealand to participate in international regulatory and enforcement co-operation arrangements to address the problem of spam. Legislation is seen internationally as an important element in addressing the problem of spam along with industry self-regulation, technical measures, and consumer and business education.
Q. What does the proposed legislation treat as "spam"?
A. The legislation will primarily address the problem of unsolicited electronic commercial marketing messages sent in bulk using services such as email and text messaging. It will also address electronic messages sent for promotional purposes by organisations to users who have chosen to opt-out of receiving further mailings.
Q. How will this legislation help in combating the problem of spam?
A. The legislation will help in combating the problem of spam by:
- Setting out what is acceptable business practice in New Zealand for the purposes of marketing by electronic means;
- Enabling legal action to be taken against spammers based in New Zealand;
- Preventing New Zealand being seen internationally as a spam haven;
- Assisting New Zealand in efforts to obtain international co-operation to combat overseas sources of spam.
Q. How does New Zealand's proposed legislation compare with the approaches taken by other countries?
A. New Zealand has, like the majority of countries that have enacted anti-spam legislation (including Australia), chosen to take the opt-in approach to regulating the sending of electronic commercial marketing messages. This means that the recipient must either have first expressly consented to receiving the message or consent to the sending of the message could be reasonably inferred from the relationship of the sender to the recipient.
New Zealand has, like the United States, also sought to target the sending of "multiple" electronic commercial marketing messages in order to not adversely affect legitimate business dealings where single or small numbers of messages are sent.
The legislation takes the same approach as the Australian legislation in providing that facsimile and voice calls are excluded because these are mediums that are currently not seen as requiring regulation.
The legislation follows a similar approach to that taken by the UK legislation. It extends to non-commercial promotional messages that seek to promote an organisation's aims or ideals, but only where the recipient has opted out from receiving such messages.
The Australian approach to penalties and remedies is followed by the provision of a civil penalties regime with the ability to impose significant pecuniary penalties.
Q. What avenues will be available to users who receive spam?
A. Users who receive spam have a number of avenues available to them including reporting the matter to their ISP/service provider; in the case of a legitimate business known to the recipient, requesting that business to remove them from their list; and adopting effective anti-spam software protection.
Q. What will be the roles of service providers and the enforcement agency?
A. Service providers have the role of dealing with complaints from their customers, putting in place appropriate technical measures to combat spam, liaising with other service providers where required, and referring matters to the enforcement agency for action where appropriate.
The enforcement agency (Department of Internal Affairs) will be responsible for dealing with complaints referred by service providers, carrying out investigations where appropriate, consumer and business education, and liaising with overseas enforcement agencies in relation to spam coming into or going out of New Zealand.
Q. When is it proposed that the legislation will take effect?
A. It is proposed that the legislation will be enacted near the end of 2005 and take effect early in 2006 after a four month transition period. This transition period is to enable businesses to be informed of the requirements of the legislation and to make whatever changes may be necessary to their marketing practices.
Q. What would happen if New Zealand did not pass anti-spam legislation?
A. New Zealand would be out of step with international best practice and could gain an international reputation as a soft target for spammers. This could lead to more spam and/or international spammers locating here.
Q. How much spam will be stopped by the law?
A. The law is not designed to operate on its own but alongside technical measures, such as filters installed by ISPs and users, and public education on ways of ways of avoiding spam.
About 10 per cent of spam is sourced from New Zealand and the law will assist in controlling this. Over time it will provide a basis for international agreements that will help control spam from foreign sources.
Q. When will the bill be available?
A. It will be made available, like most legislation, when introduced to Parliament. The Minister for Information Technology has indicated that he sees this as a high priority from his portfolio perspective.
Q. Will new forms of spam occur in future that need to be dealt with?
A. The IT and communications industry is evolving rapidly with new technologies being devised daily. The bill foresees this by providing regulation-making powers that, by an approved process, can allow coverage of the bill to be extended to new technologies as necessary. The Minister has indicated a commitment to hold further dialogue with other parties and the industry over any further extensions.
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