Legal implications of spam text messages

In an increasingly digital world, businesses are constantly seeking new ways to reach potential customers. Text messaging has emerged as a popular marketing tool due to its directness and high open rates. However, in New Zealand, there are strict regulations governing the use of electronic communications for commercial purposes. This article explores the legal landscape surrounding spam text messages in NZ, outlining the key considerations for businesses and the potential consequences of non-compliance.

Unsolicited Electronic Communications Act

The primary legislation governing spam in NZ is the Unsolicited Electronic Messages Act 2007. This Act was introduced to protect consumers from unwanted electronic communications and to maintain the integrity of NZ's digital ecosystem. While the Act covers various forms of electronic communication, including emails, it also applies to text messages.

What Constitutes Spam?

Under the Act, spam is broadly defined as unsolicited commercial electronic messages. In the context of text messages, this would include any SMS that:

• promotes or markets goods, services, investment opportunities or business interests;
• provides recipients with opportunities to gain unfair financial advantages; or
• contains links to content falling under the above categories.

The Consent Requirement

The cornerstone of NZ's anti-spam legislation is the requirement for consent. Businesses are prohibited from sending commercial electronic messages, including text messages, unless they have the recipient's consent. This consent can be obtained in three ways:

1. Express Consent: This is the most straightforward form of consent, where the recipient explicitly agrees to receive marketing messages. This could be through opting in on a website, verbally agreeing, or signing a form.
2. Inferred Consent: This applies when there is an existing business relationship that would reasonably imply consent for marketing communications. For example, if a customer has previously made a purchase and provided their phone number, a business might infer consent to send related marketing messages.
3. Deemed Consent: This applies in specific circumstances where a person has published their contact details in a business or official capacity, and the messages are relevant to that role. However, if the publication includes a statement against receiving unsolicited messages, deemed consent cannot be assumed.

It is crucial for businesses to understand that the onus of proving consent lies with the sender. Therefore, maintaining clear records of how and when consent was obtained is essential.

Requirements for Commercial Text Messages

Even when consent has been obtained, businesses must adhere to specific requirements when sending commercial text messages:

• Identification: The message must clearly identify the business responsible for sending it. This ensures transparency and allows recipients to know who is contacting them.
• Contact Information: The message must include accurate contact details for the business. These details should remain valid for at least 30 days after the message is sent.
• Unsubscribe Facility: Perhaps most importantly, every commercial text message must include a functioning unsubscribe facility. This allows recipients to opt out of future communications easily and free of charge. The unsubscribe process should be straightforward and clearly explained in the message.

Honoring Unsubscribe Requests

When a recipient uses the unsubscribe facility, businesses are obligated to honor this request within five working days. Continuing to send messages after an unsubscribe request has been made is a violation of the Act and can lead to penalties.

Best Practices for Businesses

To ensure compliance with the law and maintain positive relationships with customers, businesses should adopt the following best practices:

1. Obtain Clear Consent: Always seek explicit permission before adding someone to a marketing list. Make the nature of the communications clear at the point of sign-up.
2. Maintain Accurate Records: Keep detailed records of how and when consent was obtained for each recipient.
3. Provide Value: Ensure that marketing messages offer genuine value to recipients to maintain engagement and reduce the likelihood of complaints.
4. Make Unsubscribing Easy: Ensure the unsubscribe process is simple and immediately effective.
5. Regularly Clean Your Lists: Remove inactive subscribers and those who have not engaged with your messages for an extended period.

Key Takeaways

The legal implications of sending spam text messages in New Zealand are significant. Businesses must adhere to consent requirements and message specifications to ensure compliance with the law and foster trust with their customers.

If you are using electronic marketing, our experienced data, privacy and IT lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0800 005 570 or visit our membership page.

Frequently Asked Questions

What are the key requirements for sending commercial text messages?

To comply with NZ's anti-spam laws, businesses must obtain consent from recipients, include clear identification and contact details in the message, and provide an easy-to-use unsubscribe facility. Violating these requirements can lead to significant fines.

What should I do if a recipient unsubscribes from marketing text messages?

When a recipient unsubscribes, you are required to honour the request within five working days. Continuing to send messages after an unsubscribe request has been made is a violation of the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.