Anti-Spam Compliance Unit enforcement action

11 February 2011

The Department of Internal Affairs’ Anti-Spam Compliance Unit has introduced a web page recording enforcement action under the Unsolicited Electronic Messages Act 2007.

The unit investigates complaints about unsolicited commercial electronic messages in New Zealand, commonly referred to as spam and alleged breaches of the Act. These messages can be sent by email, SMS (short message service), instant messaging and MMS (text and image-based mobile phone messaging).

The Department has a range of enforcement options available under the Act including Formal Warnings, Enforceable Undertakings and Civil Infringement Notices.

When the Act took effect the Anti-Spam Compliance Unit used education to encourage organisations and individuals to comply with the new law. This strategy yielded positive results and, through its communications and investigations, the Department continues to establish a “compliance history”.

The Department has moved to a strategy of issuing a written formal warning when an investigation identifies a breach of the Act. The Department considers this to be a pragmatic and sensible approach to enforcement.

A written formal warning to an organisation or individual carries no financial penalty and the recipient is also provided with information regarding future compliance with the Act.

Very few organisations and individuals issued with a formal warning have breached the Act again. If the Department receives further complaints regarding the same entity then any previous compliance activity is then taken into consideration in any further investigation.

A Formal Warning is issued under Section 23 of the Act. A formal warning may be issued after an investigation has been conducted and a breach of the Act has been identified. All of the evidence and information gathered as a result of the investigation is analysed and considered in the decision making. The formal warning, when issued to an individual or organisation, comes in the form of a letter outlining the details of the events or actions that have occurred. The issuing of a formal warning does not affect the Department’s ability to consider or impose other appropriate sanctions under the Act.

An Enforceable Undertaking is issued under Section 34 of the Act. The Department may accept a written undertaking from a person in connection with commercial electronic messages, address harvesting software or harvested address lists. The undertaking is accepted on the basis that the person agrees that they will not engage in future conduct that may again breach the Act. If a person subsequently breaches one or more of the terms of the undertaking then the Department may apply to the court for an order (enforcement of undertakings).

Civil Infringement Notices are issued under Section 24 of the Act. A civil infringement notice is issued after an investigation has been conducted and a breach of the Act has been identified. A civil infringement notice carries with it a financial penalty for the identified breaches which have occurred under the Act (Civil Liability Events).

The Department makes decisions case-by-case considering all the circumstances and facts associated with an investigation. Other enforcement options are available under the Act when conducting investigations.

Information about the Department’s compliance activities can be found at Enforcement Action.

Media contact:
Trevor Henry, senior communications adviser, Department of Internal Affairs
Ph 04 495 7211; cell 0275 843 679