Richard P. Gee, President 2004

Specific Comments on the Discussion Paper legislating against Spam.

The Sales & Marketing Institute of NZ represents 1,700 practising marketing managers and sales managers who, on a day to day basis, communicate successfully using many forms of media.

In specifically answering the questions for discussions response:

1. Do you consider Spam to be an important issue, has it significantly affected you in any way?
We consider Spam to be exactly the same as any other media intrusion, in the form of advertisements, sponsorships, that are not necessarily wanted but are accepted. We indeed consider Spam to be an important issue. Spam clogs our inboxes and those of our customers, so much so that the viability of legitimate permission-based email marketing is in trouble.

2. Do you think legislation has a role to play alongside other complimentary measures?
No, the marketing fraternity in New Zealand has successfully shown that, by responsiveness to customers and self regulation, it can handle privacy issues. Self regulation is preferable to legislation, but if anti-spam legislation is inevitable, we will happily do our part as an industry body to help make the legislation as effective as possible. The DMA's "Standards for Email Marketing" is a good example of successful industry self-regulation. We support the Email Marketing Standards and suggest that the legislation reference these Standards. Email is a constantly changing medium and legislation tends to be static. The Standards has already been updated several times over the past two years because of the dynamic nature of email and the marketplace.

3. Do you consider existing privacy protections in this area sufficient?
Yes, and because marketing is customer driven there will always be a sufficient marketing response. Existing privacy protections are sufficient to protect privacy, but not sufficient to stop spam. With that said, however, no amount of additional legislated privacy protections enacted by the New Zealand government are likely to significantly reduce the amount of spam.


4. Do you agree that standalone anti-Spam legislation is preferable to reliance on the Harassment Act?
We don’t believe that legislation will actually be effective, and as most Spam is generated overseas, it will be seen as ‘window dressing’ by New Zealand businesses, with little action being able to be put into place.


5. What message medium should be caught by the legislation, eg. email, short message services using mobile phones, internet instant messaging, faxes, telephone/telemarketing, physical mail delivery?
None. We don’t believe that anti-Spam should consider any forms of media, as the choices of media by email, mobile phone texting, instant messaging, faxes, telemarketing, and physical mail delivery are all covered in the existing voluntary codes and customer reaction practices by marketers. If legislation has to consider it should be just Email, possibly also Internet instant messaging. Not SMS, as from a practicality standpoint, the cost of SMS messages are borne by the sender and so the financial incentive for the spammer is much less than email or Internet instant messaging. Faxes, telemarketing, and direct mail should absolutely not be caught by the legislation.


6. Do the messages caught by the legislation have to be sent or conveyed to many recipients, and if so how many?
Setting a threshold number would be a mistake in our opinion, except perhaps for when assessing penalties.


7. Should the messages caught by the legislation be of the commercial advertising promotional nature only, or should other types of messages be caught? Should there be exceptions, and if so what should be exempted?
It should only apply to messages of a commercial advertising or promotional nature. No exceptions should be given to charities or political parties.


8. Should the legislation extend to coverage of acts done overseas, if so what acts should be covered?
The primary focus should be on minimising overseas spamming to New Zealand.


9. Should all parties involved in the act of spamming, such as the vendor sponsoring the spamming, be covered by the legislation? Should there be express exceptions such as for telecommunications companies and ISPs?
The only person who should ever be caught would be the originator, which is the vendor, and with no vendor who is the originator then the spammer. It is impossible for telecommunications companies and ISPs to view or want to view the content of every email.


10. Should NZ adopt opt-in, double opt-in, or opt-out approach in legislating against Spam?

Opt-in, in our opinion, makes the most sense, as long as the legislation doesn't interfere with the ability of legitimate email marketers within New Zealand to do business. Our view of opt-out is that it burdens the consumer to opt-out of potentially many thousands of spam emails. Furthermore, that consumer still won't be able to trust the unsubscribe process because most overseas-originating spams won't comply with the legislation. We believe any choice should be based on an opt-in approach, as this then forces the marketer to relate very specifically to customer demands. The double opt-in goes against the ease of use of email, internet, texting, in that customers just get frustrated with it. The double opt in approach overburdens the small businesses because it requires technology that usually only larger businesses possess. Furthermore, double opt-in, with all those confirmation request emails, will increase the volume of email and the effort required for the consumer, compared with a simple opt-in approach


11. If an opt-in or double opt-in approach was to be adopted, what should amount to ‘express consent’ and what actions or relationships should amount to ‘inferred consent’ to the sending of a commercial electronic message?
As we have said, marketing managers are responsible enough in their collection of database information of their own customers, and any control would affect existing customer bases and have no effect on spammers wild collections of addresses. This is a very important issue for us. It's unlikely that NZ marketers have collected opt-in date & time, IP address of opt-in, etc. in their opt-in databases. If an NZ marketer has a website with an opt-in form that only asks for email address, that opt-in database should be considered compliant as express consent according to the legislation. It would be disastrous for NZ marketers to have to go back and obtain a second opt-in on an already opt-in database, as it would likely reduce the list by three-fourths (an obviously NZ business-unfriendly result). Inferred consent should include customer and supplier relationships, and it should include the actions of handing over one's business card (after all, a business card's purpose is to convey contact details to facilitate future contact).


12. How should the scope of any opt-in or double opt-in assent be framed?
It should be a one-time opt-in. We should not have to go back to our database and keep pestering them to repeatedly opt-in after a certain time period.
It should be noted that in the form of text messaging, Telecom and Vodafone already operate a voluntary code that says you cannot text to anybody who is not already an existing customer of yours on a text database. This works well, and stops spamming, and has been initiated by Telecom and Vodafone themselves voluntarily.


13. Should there be a requirement for commercial electronic messages to accurately identify the sender of the message? If so, what constitute accurate identification, eg. name and physical address, name and mail address?
We believe that all existing responsible marketing people will always identify themselves with accurate identification, and this is currently done by our members and most of the marketplace and practice. Any legislation would only be covering a very small minority. Only spammers forge or hide their identity, so this is a simple way for the legislation to catch only the spammers. We believe the identity should be the sender's company or trading name along with either their physical address, web address, or phone number.


14. Should there be a requirement for commercial electronic messages to include a statement to the effect that the recipient may use an electronic message address set out in the message, to send an unsubscribe message to the sender, and to ensure that such electronic address is functional?
It should Require a functional unsubscribe to be included in promotional messages, but don't require that it has to be by replying to the email. Clicking a link to a web page to unsubscribe should be sufficient, as it is an easier process for the recipient and doesn't clog up his Sent Mail folder with unsubscribe requests. Individual email correspondence should not require this. (Can you imagine if all email correspondence a businessperson sent through the course of the day via Outlook had to have unsubscribe instructions?)


15. Should there be a requirement that commercial electronic messages provide accurate header and subject information?
Yes, we would agree that any good marketing manager would provide accurate header and subject information in communication to their clients. The requirement should be to not provide false or misleading header or subject information. Then it's consistent with the existing body of legislation relating to fraud.


16. Should there be a requirement for the labelling of advertising or adult messages?
We do not believe that messages sent to your own customers on a database should have to have any special requirement as to their content. There is no special requirement content in any other media that is legislated for. . Labelling is unnecessary if the recipient has opted in.


17. Should anti-Spam legislation include rules against the supply, acquisition and use of address of address harvesting software, and harvesting address lists in connection with the unlawful sending of electronic messages?
Yes, we would agree that address harvesting software and harvest address lists is not good marketing practice, and could be caught by the legislation.


18. Who should be able to bring an action against a spammer?
We believe that it should be the customer who is offended by the spamming, perhaps supported by action by an ISP.


19. What agency should have an enforcement role under the legislation?
We don’t believe there should be a legislation, so therefore we cannot agree that there needs to be an enforcement role, because it would be self regulation by the marketing industry. But we could accept if there is a partnership between industry & government to allow complaints to be lodged for adjudication, a government funded industry body as agency.


20. What should be the available penalties and remedies for breaches of anti-Spam legislation, and what should the maximum final pecuniary penalty be?
Our answer is nil, because we do not believe that this legislation is proactive towards business, or effective.


21. Should contraventions give rise to criminal or civil penalties?
No, we cannot agree to criminal or civil penalties, as they don’t exist in any other media advertising specifically, and of course are covered by the Fair Trading Act and other legislation for willingly misleading customers.


22. Should the responsible enforcement agency be given the ability to obtain search warrants conferring hours of entry, search and seizure?
No, as we don’t believe there needs to be an enforcement agency, as the industry has proven itself under self regulation right now, under direct marketing and general marketing that it can be responsible to customers, and there are already enough powers right now when the Commerce Commission, under the Fair Trading Act and the Consumer Guarantees Act, to obtain other information.