Key takeaways

• Recent action by regulators in New Zealand and Australia illustrate the importance of businesses being aware of the requirements under anti-spam legislation.

• Fines can be hefty with a New Zealand business recently being fined NZ$30,000 and a business being fined AU$2.5 million in Australia for breaching laws.

Prosecutions across the ditch

Earlier this year, Sportsbet paid a fine of AU$2.5 million and committed to refunding AU$1.2 million to customers after the Australian Communications and Media Authority (ACMA) found that the online gambling company breached Australian spam laws by sending marketing communications without the required consent by recipients and functional unsubscribe facilities.

Over a period of fourteen months, Sportsbet sent over 150,000 marketing text messages and emails to more than 37,000 consumers who had tried to unsubscribe and over 3,000 text messages with no unsubscribe option. The text messages and emails offered incentives to consumers to place bets or contained alerts about upcoming races. ACMA was put on alert when they received complaints from consumers with gambling-related problems who were trying to manage the problem by unsubscribing from Sportsbet’s marketing communications. Prior to commencing its investigation, ACMA notified Sportsbet that it may have compliance issues but the company failed to take adequate action. Read more about the case here.

Closer to home, in 2020, the New Zealand Department of Internal Affairs (DIA) issued a fine of NZ$30,000 to The Safety Warehouse (TSW) after it found the business had sent over 4,800 unsolicited text messages and failed to provide an unsubscribe facility. TSW had previously been issued with a formal warning in early 2020 for sending unsolicited commercial messages, followed by an infringement fine in August for breaching anti-spam law. More details on the case are available here.

Key legal requirements

New Zealand’s Unsolicited Electronic Messages Act 2007 and Australia’s Spam Act 2003 both prohibit the sending of unsolicited commercial electronic messages (CEM), unless the recipient has consented to receiving the CEM.

Apart from the consent requirements, the other technical requirements under both Acts are similar. They require:

• the senders of CEMs to identify themselves and provide contact information so that recipients can contact the senders;

• the contact information provided to remain valid for at least 30 days following the sending of the message;

• CEMs to contain a functional unsubscribe facility that is clearly presented and conspicuous and remains valid for at least 30 days following the sending of the message; and

• the unsubscribe request to be effected within 5 working days of the unsubscribe facility being used.

What does this mean for you?

Take stock of your compliance with anti-spam laws, as fines can be quite hefty. The New Zealand Act provides for pecuniary penalties of up to NZ$500,000 where the perpetrator is an organisation. Pecuniary penalties under the Australian Act as we have seen are much higher, and dependent on the number of contraventions committed as well as whether the business has a prior record of contravention.

Make sure you obtain consent from consumers and include working unsubscribe facilities in your electronic marketing communications. Otherwise, you risk drawing attention from the regulators who have shown that they are active in pursuing investigations into non-compliant practices.

Get in touch

We have experts who are experienced in anti-spam legislation. If you need any advice in ensuring your marketing processes are compliant, or if you have any questions about legal compliance for marketing in general, please get in touch with our experts.

Special thanks to Juliet Bing-Harmon for her assistance in writing this article.