Wham, bam, death to spam

Simon Martin | Monday 27 February 2006

As first published in The Business, New Zealand Herald,
27 February 2006

Nigel Roberts is a businessman in the Channel Islands sick of being bombarded by emails for things he didn't need - so he got mad, got legal, and got even.

His decision to rise up against the spammers is a significant one for business and individuals fed up with the onslaught of unsolicited email about things we may not need or want - from the quick fix cure-all health products to the Nigerian scams. It sends a message that spam isn't something that we have to accept as a cost of using the internet whether we're in the Channel Islands or Stewart Island.

Three years ago the European Union passed a law, which among a number of measures, gave individuals new tools to slow down the growing volume of unwanted email. A recent EU study estimated that spam cost the global economy 10 billion euros - and that's not counting the laptops thrown through windows in frustration. Nigel complained to a UK internet marketing firm and when he got no joy took the first claim under the law. He succeeded and received damages of £270 - in his own words it "may be a tiny victory but perhaps now spammers will begin to realise that people don’t have to put up with their email inboxes being filled with unwanted junk".

The need for and cost of anti-spam software is significant for business here - and in particular the battle against increasingly sophisticated spammers is a burden to smaller businesses. Just before Christmas some potential future relief was introduced to Parliament via our own anti-spam legislation, the Unsolicited Electronic Messages Bill.

As Information Technology Minister David Cunliffe noted, spam has gone from being a nuisance to being a significant social and economic issue  and a drain on the business and personal productivity of New Zealanders. The Bill, now at select committee, is part of a multi-pronged strategy to reduce and control spam and will bring us into line with Australian, the UK and US efforts.

The key aim of the Bill is to promote the responsible use of electronic messages - and that includes email and text messaging - by:

• prohibiting messages for the sale of products and services that have a New Zealand link except where people have given their consent - or "opted in"
  
  
• prohibiting messages that promote or market an organisation, if the messages have a New Zealand link, where a person has withdrawn their consent - or "opted out"
  
  
• requiring all messages with a New Zealand link to identify and provide contact details for the person authorising the sending, as well as provide an unsubscribe function
  
  
• prohibiting the use of software to harvest electronic addresses and the use of "harvested" electronic address lists.

While the Bill does purport to extend to spammers sending messages to New Zealand residents it remains to be seen how effective it will be in relation to spam originating overseas given the difficulties in locating the spammers and enforcing NZ rights in the relevant country.  However it is good to see New Zealand playing its part in this global problem.

The biggest initial impact will be on digital marketers, and internet service providers. Marketers will have to distinguish between commercial messages and promotional messages and ISPs will be required to deal with complaints. The Department of Internal Affairs takes the role of enforcement agency. And should Nigel rise up from somewhere in New Zealand the end result could be fines of up to $200,000 for offending individuals or up to $500,000 for organisations. A sizeable slam for spam and a victory for individuals and the economy.

* Simon Martin is a partner with Bell Gully, specialising in information technology and telecommunications. His legal career has included a period working the intellectual property and information technology team of a leading London law firm.