From the Actrix Online Informer October 2007

by Rob Zorn

The Spam Act 2007

The Unsolicited Electronic Messages Act 2007 (Spam Act) came into effect on 5 September 2007, and there has been some concern from a number of quarters, particularly those in business, about its implications. There have been some misunderstandings, too, to the extent that some people are worried they might be liable for a $200,000.00 fine for sending an e-mail to Aunty Doreen that she didn't ask for.

While there are some legitimate concerns for people in business who market their products electronically (not necessarily a bad thing), most of us don't have anything to worry about. The Act only applies to commercial electronic emails or text messages; that is those that promote or market goods or a services.

So, to be clear, the Spam Act does not make it illegal to send unsolicited messages. In fact, section 6 of the Act, after defining what a commercial message is, gives some examples of what one isn't. It is fine, for example, for an organisation to send e-mails to its members about such matters as the status of their membership. An email from a club to its members about the club's recent activities is also fine, providing goods or services are not being marketed at the same time.

The Act is also concerned about how mailing lists are derived. They can't be harvested, for example, which refers to software trawling the Internet looking for e-mail addresses. Obviously, such addresses would belong to people who have had no opportunity to express their consent to receive messages so e-mailing or texting them would amount to nuisance.

Commercial messages can be sent to people who have given their consent to receive them, and the meaning of consent is reasonable in the Act. Besides the obvious "express consent" there is also what is known as "inferred consent."

If someone sees my email address on a website that includes a description of my position and business activity, and there is nothing on the site that forbids electronic contact, then it is perfectly legitimate for that person to send me a commercial email or text as long as the message is relevant to my advertised business activity. It would not be legitimate for my email address to be sent messages offering to sell me Viagra, or the secrets of Shamanism or whatever.

If you are going to send someone an electronic message that is commercial in nature, and you're sure you have their express or inferred consent (be careful here because the onus in on you to prove they consented), there are some new requirements. Your email or text message must clearly state who the email comes from, and how the organisation and the person sending the message can be contacted.

The email must come with an unsubscribe function that works in the same way as the message. In other words, if your message is an email, they must be able to unsubscribe by email. If it's a text, they must be able to unsubscribe by text. Requests to unsubscribe must be actioned by the sending party  within five days.

So, to conclude, if you're in business and you use texts or emails to market your products, you should definitely have a read of the Act and possibly get some legal advice. It's not too long or difficult, and is available online here: (under U in the index on the left of the page).

If you regularly send emails out to a database of people, but the emails aren't commercial in nature (e.g. club or organisation newsletters) then you shouldn't have anything to worry about. Just make sure the people receiving them are all members, or have consented to receive the newsletters if they're not.

You would also be advised to add an unsubscribe function to your email or text so that anyone not wanting to keep hearing from you can quickly and easily let you know. After all it's not just about what you can and can't do legally - it's also about avoiding being a nuisance.

Lastly, there is a lot more to the Spam Act than is covered here, and this brief article is not intended to provide an exhaustive overview. Any decisions you make about sending electronic messages should be based on your own understanding of the Act and legal advice as appropriate.


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