Recent judgment is a reminder that spam doesn’t always have malicious intentions

Monday, November 4, 2019

A charitable trust has recently been sentenced for breaching the Unsolicited Electronic Messages Act 2007 (often known as the Spam Act), in a reminder that it’s easy to do the wrong thing, even if it is unintentional.[1]

The New Zealand Trustees Association Charitable Trust (NZTA) provides advice and information to a range of entities, including estates, boards of trustees, foundations, trusts, and other fiduciary enterprises, about how those entities should carry out their functions and duties. The services supplied were based on membership subscriptions, and include subsidised annual financial reviews, website listings, a regular publication (the Estate and Trust Bulletin), and general support.

In October 2015, there was a discussion at NZTA’s annual general meeting about an offer to use a third party email service, and an agreement was reached to donate memberships to NZTA through the emails. The email addresses were obtained from a website formerly operated by the Charities Commission. Emails were sent, with an offer of 12 months free membership to NZTA, after which an annual membership fee would be payable if the recipients didn’t opt out. The decision did not explore consent issues in respect of the Charities Commission address list.

NZTA’s emails were clearly unsolicited commercial electronic messages. In total, approximately 53,000 emails were sent, and NZTA received subscription payments amounting to at least $48,562. Notably, some emails were sent after the Department of Internal Affairs warned NZTA that they considered that the emails were a breach of the Spam Act, and some were sent after NZTA and its founding trustee, Mr Anderson, entered into an enforceable undertaking to not send out unsolicited emails in the future.

The District Court fined NZTA $36,000, and Mr Anderson $8,000, for sending unsolicited emails in breach of the Spam Act. They were also ordered to comply with the enforceable undertaking in the future.

Anybody sending emails to large mailing lists should carefully analyse whether their distribution will breach the Spam Act.

If you have any questions about compliance with the Unsolicited Electronic Messages Act, please contact special counsel Jonathan Forsey or a member of our litigation and dispute resolution team.

 

[1] Chief Executive of the Department of Internal Affairs v NZ Trustees Association Charitable Trust and Errol Bruce Anderson [2019] NZHC 2684.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.