Results of investigations
Below are some examples of the complaints we have received and the results of our investigations. Because we were concentrating on educating businesses early on the companies involved have not been identified.
Civil Infringement Notice
On 24 February 2010, the Anti-Spam Compliance Unit (known as Electronic Messaging Compliance since November 2012) received a complaint about unsolicited commercial emails sent from a well-known Australasian company. The complaint detailed alleged breaches of section 9 (1) and (2) (consent) and section 11 (1a) (unsubscribe) of the Unsolicited Electronic Messages Act 2007.
The complainant said he had contacted the offending organisation many times to unsubscribe from receiving the emails. Having had no success he turned to the Department for assistance, lodging his complaints through the Spam Complaints system.
Between lodging his complaint and the Department beginning its investigation on 25 March 2010 the organisation sent the complainant a further 13 emails.
The man said he had originally opted in to receive marketing material from the organisation. But he later attempted over several months to opt out, using a variety of methods including the emails' unsubscribe facility linked to the organisation's automated subscription system, contacting the business via Facebook and emailing directly - all to no avail.
The offending organisation's case history revealed that a previous complaint was lodged with the Department in September 2009 and resolved through education and persuasion. On this occasion a complainant had attempted unsuccessfully to unsubscribe over five months. The organisation assured the Department that a defect in its automated subscription system, which sent unsolicited electronic messages, had been fixed.
The Anti-Spam Compliance Unit discovered that the complainant was assured in mid-January 2010, through a conversation on Facebook, that he would no longer receive these emails.
The Department contacted the offending company in late March 2010 to be told they were "not aware of any failings in (their) system". Thirteen further unsolicited electronic messages were submitted to the Department, each one constituted a civil liability event and a breach of the Act. The person responsible for authorising the sending of the messages was asked on 1 April 2010 to remove the complainant's email address immediately and cease sending him any commercial electronic messages. The complainant received a further unsolicited email 11 days later!
A complete and thorough investigation into the February 2010 complaint led to a total of 24 unsolicited emails being identified, for a total of 26 civil liability events (24 breaches of Section 9, consent and 2 further breaches of Section 11, unsubscribe).
The Department issued an infringement notice for a total of $6,500.00 - $250.00 per breach of the Unsolicited Electronic Messages Act (2007) Sections 9 and 11. This civil infringement notice was issued on 19 April 2010. Payment was made in full and no objection to the notice was made.
Christchurch spamming investigation
On 17 December 2007 the Anti-Spam Compliance Unit seized 32 computer systems and a substantial amount of paper documentation from four Christchurch addresses. We also interviewed two Christchurch businessmen believed to be connected with the spamming operation responsible for sending spam worldwide offering pharmaceutical products and watches.
On 14 October 2008 the Department announced that it had asked the High Court to impose financial penalties of $200,000 on each of three New Zealanders involved in a major international spamming operation. This was the first court action since the introduction of the anti-spam law, the Unsolicited Electronic Messages Act on 5 September 2007 and followed a raid on four Christchurch addresses in December 2007.
On 22 December 2008 the Department announced that one of three New Zealand citizens had admitted his part in a major international spamming operation and would pay a financial penalty of $100,000 plus costs of $7666.
On 2 November 2009 the Department announced that the two other people involved in this spamming operation had admitted their role and would pay financial penalties of $100,000 and $50,000.
Deemed consent
We received several complaints from schools who had been sent emails from businesses offering to sell them goods related to education. Further investigation revealed that the Ministry of Education had a list of all New Zealand schools on their website. This meant the businesses had consent to send the emails because they were conspicuously published, work-related electronic addresses.
We advised the Ministry to add a note to the webpage stating that the addresses could not be used to send commercial electronic messages. This would mean deemed consent no longer applied. The Ministry chose to remove the list from the website.
Historic promotion
We received a complaint about a jewellery company who had recently sent a promotional email to people listed on their database. We visited the company’s head office, offsite administration office, their marketing company and bulk email provider to investigate further.
We discovered that the company ran a specific web-based promotion in 2002 where entrants had an opportunity to win a pair of earrings. The conditions of competition entry included a clause stating that 'all entries will be added to a database and may receive promotional offers from other businesses in the future'. It also gave a contact email address should entrants want to be removed from the database.
Our investigation concluded that the jewellery company had complied with the Unsolicited Electronic Messages Act 2007. However, we did recommend that if this company were to run a similar email promotion in the future they should include a reference to where they obtained the recipient’s email address, as most people would not remember entering a competition in 2002.
