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Anti-Spam Bill Introduced

Hon David Cunliffe
Minister of Communications
Minister for Information Technology
Associate Minister of Finance, Revenue and State-Owned Enterprises

28 July 2005 Media Statement

Anti-Spam Bill Introduced

Information Technology Minister David Cunliffe has today tabled in Parliament the Unsolicited Electronic Messages Bill.

In a speech to the Telecommunications Users Association today, Mr Cunliffe said the bill would make a positive difference in the fight to reduce spam.

“This legislation will complement codes of practice, education and consumer awareness and assist in the war against spam," said Mr Cunliffe.

The bill means that mass-marketing emails and text messages can only be sent to people that have "opted-in" – or consented to being on the mailing list.

Mr Cunliffe told the conference that three-quarters of unfiltered email is spam and is a huge waste of time and bandwidth.

"Criminals have gained access to a whole new world of scams such as phishing and bank fraud," said Mr Cunliffe, "this will go some way towards combating this and ensuring New Zealand is not seen as a haven for spammers."

Maximum penalties of $500,000 for organisations and $200,000 for individuals aim to deter professional spammers looking to operate from New Zealand.

The Department of Internal Affairs would enforce the legislation as it already has expertise in administering laws relating to electronic content.

The bill also requires accurate sender identification and an unsubscribe option for recipients.


Q & A for Anti-Spam Bill

Why is the Government legislating against spam?

The Government is legislating 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.

How does the bill define “spam”?

The legislation will primarily address the problem of unsolicited electronic commercial marketing messages sent in bulk using services such as email and text messaging.

How will this legislation help in combating the problem of spam?

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.

How does New Zealand’s proposed legislation compare with the approaches taken by other countries?

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.

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.

What avenues will be available to users who receive spam?

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.

What will be the roles of service providers and the enforcement agency?

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.

Is there a threshold for the number of messages sent for them to be considered Spam?

No. However, because any spam complaints have to be made to the service provider first, it is likely that only serious offenders will be referred on to the enforcement agency. The element of bulk will not be included in the definition of spam but the number of messages sent will be a relevant factor in determining what penalties to apply.

What would happen if NZ did not pass anti-spam legislation?

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.

How much spam will be stopped by the law?

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 NZ 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.

Will new forms of spam occur in future that need to be dealt with?

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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