Staying the Right Side of New Zealand Email Marketing Law

New Zealand’s rules regarding email marketing are very clear. Set out in the 2007 Unsolicited Electronic Messages Act and further explored in the Department of Internal Affair’s (DIA) Anti Spam regulations, there is no reason to fall foul of the law when it comes to email marketing in New Zealand. Spam is defined by the DIA as an “electronic commercial email, fax, mobile/smartphone text (TXT) and image-based messages you receive without having requested them”. This seems clear, but following the February 2014 ruling that forced an Auckland based marketing firm to pay pecuniary damages of $120,000 for sending spam emails, the spotlight on legal email marketing in New Zealand has intensified.

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The Unsolicited Electronic Messages Act – New Zealand Email Marketing Law

The 2007 Act makes it clear what is permitted and what is not for email marketing. Primarily, the focus falls on permission. Unsolicited emails are strictly forbidden, tallying entirely with DIA’s definition of spam. The Act states that “Unsolicited commercial electronic messages must not be sent”. This is a simple message, which is not expanded within the wording of the Act, leaving the onus of proof on the sender. This means that in order to legally send an email marketing message, the recipient must have opted in in such a way that it can be proved that the recipient was aware of both the opt in agreement and the potential communication content.

Despite the clarity of wording, there remain a few legal grey areas. Whilst the use of purchased email registers or stripping software is not permitted, without contradiction (these are specifically legislated against within the 2007 Act), there remain questions over active or passive consent. The simplest way to differentiate between active and passive consent is through the transaction page tick box. Tick to receive or untick to receive. Both are versions of consent. However, proving consent relies entirely on the sender, and without a clear consent from the recipient, the law will always find in favour of the recipient.

The second requirement for all email marketing in New Zealand is a functional unsubscribe link. All messages must provide the opportunity to unsubscribe from all future electronic communications. The unsubscribe function, once activated, removes any previous consent to receive electronic communications. There is a five day grace period, allowing for emails that have already been designed and uploaded into sending software to be sent without potential for prosecution. Any email marketing sent after the five day period will be deemed to be illegal. The unsubscribe function must be clearly and conspicuously included within each email, and there may be no financial penalty for doing so.

Thirdly, each communication must clearly show the senders contact information. This not only means the inclusion of a working contact address, but it must also name the person that authorised the sending of the email. This individual must be physically in New Zealand, or a business that acts within New Zealand at the time of use.

Enforcing New Zealand Email Marketing Laws

If an enforcement officer has reason to believe that the 2007 Act has been infringed, there are a number of options available to them. Firstly, a formal warning may be issued to an individual or company, outlining the offense. In response, the DIA may accept an Enforcement Undertaking from an individual or company. An Enforcement Undertaking is an agreement that the person will cease from practices outlawed under the 2007 Act, but if the terms are breached, the individual will be subject to a Court Order.

Beyond that, Civil Infringement notices may be issued. Civil Infringement Notices permit an authorised Infringement Officer to set an expedited penalty on the sender. This penalty, if paid, negates the requirement to go to court. Under the 2007 Unsolicited Electronic Messages Act, this penalty is set to a maximum of $200 per “civil liability event” for an individual defendant or $500 per “civil liability event” for organisations or companies. Payment of this penalty prevents later civil penalty proceedings under the Act. However, unpaid penalties may be recovered in a District Court.

New Zealand Email Marketing Best Practice

Keeping on the correct side of the law when it comes to email marketing in New Zealand is straightforward; ensure there is clear consent to contact, avoid email harvesting or paid lists, provide a valid, obvious unsubscribe link and valid contact details on each communication sent and you will prevent prosecution. However, successful, conscientious marketers can go much further to ensure that their communications are not considered spam, and therefore do not negatively affect their brand, nor future email marketing campaigns. Published by the Marketing Association, the Best Practice Standards for Email Marketing are designed to complement the 2007 Unsolicited Electronic Messages Act.

The guidance looks at six ‘Key Principles’ which the Marketing Association have identified as methods to ensure that email marketing remains a useful, unobtrusive tool. By adhering to these six principles, a company can go a long way in providing welcomed email communications that provide interest, brand recognition and potential sales that can benefit both parties.

The first three key principles effectively mirror the key pillars of the 2007 Unsolicited Electronic Messages Act; ‘Send only relevant offers to consenting parties’, ‘include an unsubscribe function’&‘tell the recipient who you are’. However, the Best Practice Standards do elaborate on each.

When looking at express permission to contact, the Best Practice Standards expressly set out a range of examples of unacceptable email address use. These include the use of third-party databases, using of published email addresses or the use of purchased or harvested lists. Best Practice Principle Six further elaborates on this point, defining list harvesting as “compiling email addresses through anonymous collection procedures such as via a Web Spider, through chat rooms, or other publicly displayed areas listing personal or business email addresses”. Collecting email addresses without the owner’s knowledge is strictly forbidden.

However, lists generated as part of a competition are compliant with best practice guidelines, as long as the addition to a list is clearly marked as part of the entry conditions at the time of entry. The guidelines also consider friend to friend list generation, where recipients are encouraged to sign up their friends. These are permissible, under strict conditions. First of all, it must be made clear that the original recipient’s name will be used when contacting the suggested recipient. On contacting the suggested recipient, the original recipient must be clearly credited with the suggestion. This communication does not constitute express or inferred consent, instead, it is only an opportunity to ask if the suggested recipient would like to sign up to a specific email or group.

There is also a useful differentiation between ‘express’ (direct consent to contact) and ‘inferred’ consent (a prior, relevant business relationship), both of which are permissible. Email communications which form part of a transaction, i.e. acknowledgement of order, tracking information or customer service follow up are permissible communications as part of a genuine transaction.

Principle Two focusses on unsubscribe functions, echoing the 2007 Act. It states that all email marketing communications must include a clearly visible, working unsubscribe link. When engaged, the unsubscribe must be actioned within 5 days, and the individual may not be re-subscribed without prior, written consent. The best practice guidelines do elaborate slightly, explaining that it is permissible to try to obtain information regarding the reason for unsubscribing.

Principle Three, again, mirrors the 2007 Act, this time, in regard to publishing sender details. These must include a valid name (either individual or company – which must be present or active in New Zealand at the time of sending), a valid address and a functional reply email address. Falsified information or IP addresses that are non-functional will see the marketing as illegal under the 2007 Act.

The last two Best Practice Key Principles go slightly further. Principle Four examines the “Truth in Advertising” doctrine, focussing on the content of subject lines. Subject lines should not falsify the contents in order to gain click-trough’s. Open rates are and click through rates are the obsession of many email marketers and copywriters. However, the two are often not comparable. A subject line that sees open rates soar will often contain content so different to the promise that click-trough’s plummet. The art to a genuinely successful marketing email is to have a subject line that peaks a genuine interest in the content, rather than a gimmick to open. This will result in a much higher quality of click through. Personalisation, through merge fields, is a good way of inciting a feeling of genuine connection, and can often be an easy way of increasing engagement with an email campaign.

Finally, Principle Five looks at the reasons for communication. Primarily, on collection of an email address, it should be clearly stated why the email is being requested, offering recipients the choice of offer type, communication frequency and information sought by the consumer. Doing this will allow the creation of a series of smaller emailing lists, which can be targeted with much more focussed, more relevant email marketing. This will result in each recipient receiving far fewer irrelevant emails, improving brand association and encouraging the recipient to open and engage with those emails that they do receive. Having a large number of well understood email lists will massively benefit both recipient and sender, allowing for targeted testing of copy and offers.

• Find Out More: NZ Unsolicited Electronic Messages Act 2007