Patrick McGrath

BA,LLB(Hons) MComLaw(Hons)
Patrick McGrath

Phone +64 9 300 1257
Mobile +64 21 619 540
patrick@mcgrathlaw.co.nz

Vulcan Building Chambers
Level 4 Vulcan Buildings
Cnr Vulcan Lane and
Queen St

PO Box 3320
Auckland 1140
New Zealand

Marketing association questions need for anti-spam law

September 9 2004

The Direct Marketing Association (DMA) has spoken out against the proposed introduction of anti-spam legislation (see Government announces new direction on anti-spam legislation), citing the "potentially sinister side effects" for direct mail and telemarketing. Its main concern is that the new law may be used to control not only email, but also telemarketing and physical mail delivery.

Earlier this year the Ministry of Economic Development issued a discussion paper on anti-spam measures. It focused on which media should be targeted by the legislation (eg, email, faxes, physical mail delivery, telephones (telemarketing) or text messages).

However, it seems unlikely that the law would be extended to post and telemarketing. The ministry has referred to "difficulties" in extending the application of anti-spam legislation to traditional direct marketing mediums, noting that it is the marketer who bears the cost of postage or phone calls, whereas in the case of electronic communications the recipient or the recipient's internet service provider bears the cost.

Regulating traditional direct marketing through anti-spam legislation would also put New Zealand at odds with some of its trading partners. For example, Australia's anti-spam law applies to 'electronic messages' including email and fax (see Australia finally implements anti-spam act after lengthy debate), the European Union's anti-spam legislation applies to email, fax and text messages (see New EU directive spurs on anti-spam crusade), while US legislation only covers email, with telemarketing being regulated separately (see CAN-SPAM Act ushers in new anti-spam regime).

The DMA believes that specific anti-spam legislation is unnecessary and that industry self-regulation is the best way to tackle spam. The DMA Code of practice provides that:

"As a general rule, email spamming (the process of unasked-for mass marketing by email) is regarded as a poor business practice. Unrequested marketing communications must not be sent by email unless they are relevant to the existing relationship between an organization and its customer."

The code also requires that any email offers must clearly identify the marketer and provide the recipient with a simple and easy to use method of replying and opting out, whereas the ministry's current preference is for an opt-in approach. Although the DMA code does not have the force of law, members who breach it may be reprimanded, suspended or expelled.

The consultation period for the discussion paper has now closed. Submissions are being considered by the government and a decision on anti-spam legislation is expected this month, with a bill to be introduced to the house by the end of the year.

Patrick McGrath, Auckland
First published in World eBusiness Law Report, September 2004