THE ANTI-SPAM LAW As of 5th September 2007, New Zealand will have finally introduced an “Anti-Spam” legislation. It is important to take note that the company or person authorizing the sending of “spam” knows that they now have a legal obligation to comply with this legislation. It is possible that legal action may result in awards up to $200,000 for individuals and up to $500,000 for a company if major and repeated breach is proven. We therefore recommend that your organization review procedures and make sure that you have consent in place for “legitimately” gathered information. In case you are already worried, there is no need. The “intent” of this legislation is to have a legal backbone to track and prosecute real offenders. In summary, the law simply wants you to clearly identify yourself, have consent from the recipient, easily allow a user to unsubscribe, not to use harvested lists, and put good practices in place. Let us look at each of these areas in more detail:
1. Identify Yourself The best practice here is to make sure that you have a subject line in your email. Then you must have your company details with current contact details and return email address so that recipient can reply to an actual email address. While many emails come from a hosted environment and cannot be replied to, an additional avenue should be provided. This refers to the ability of the recipient to “unsubscribe” in case you do not have an automated “unsubscribe” link, or if the link does not work. 2. Consent In order to communicate with your clients, you must have one of three main type of consent. The following terms are in order of preference.
Express Consent This refers to people who have willingly “opted-in” to receiving communication from you. This is achieved by asking their permission at the time of providing their personal information. It is best practice to have an opt-in option for the client rather than a opt-out. For VETLINKSQL users, the best way to achieve this is to go to Setup and modify the New Client and Address Update forms and request consent with a tick box. It is best to be very convincing and remind clients if they miss the question. Another option would be to have a YES and NO option. Because VETLINKSQL has Letter, Phone, Email and SMS (TXT) preferences, you may want to consider asking permission individually or for a “generic” consent to cover all forms of communication. The latter would be easier and better.
Inferred Consent Most of our clients will fall into this category. Inferred consent means that you may assume or infer that the client has given you consent because of the provision (on your part) of relevant information such as
Reminders, Invoices, relevant Newsletters, etc. While it is quite legitimate for a Vet to send information on Pet Food or Dog Collars and a Salon to send information of Shampoo & Conditioners, it IS NOT “inferred consent” to be sending emails on unrelated matters such as “Insurance” or “Pyramid Marketing” schemes.
VETLINKSQL users who have engaged P2P Limited to develop their web site with the latest HTML graphical Newsletter broadcast module are covered as the synchronized list come to the portal, and is the same as the clinic database.
Deemed Consent This refers to details obtained from a published source by a person. This may refer to business cards and web sites. To avoid being spammed, clearly state on your web site that you deny permission for any unsolicited electronic communication. It is best practice to record where and how you obtained the details and only send relevant material.
3. Required Particulars It is best practice to send out any commercial messages with either an UNSUBSRIBE link or allow the user to REPLY to an active email address. A statement such a “Please reply with UNSUBSCRIBE in the subject line to be removed from this list” is adequate. More advanced systems will have a link that when clicked on, will automatically remove them from that list. The UNSUBSCRIBE link must be obvious and working for 30 (thirty) days and action requests must be achieved within 5 days. 4. Harvested Data Always know the source of the database that you are using. Harvested data refers to data such as email addresses that are “stolen” from trawling the internet by special software that looks at web sites, forums, etc. Don’t use such data! It is not uncommon to obtain details from local councils and government web sites and real estate agents for new prospective clients in your area. This is no longer “kosher” and you should avoid using such lists.
WHAT DEFENSE DO YOU HAVE? You may have a defense if the message was sent by a genuine mistake or through a software fault or because of a software virus and without your knowledge. It is important to note that the onus is on the sender at all times to prove events and processes that led to genuine mistakes. CONCLUDING REMARKS Most P2P Limited clients are covered under the “Inferred Consent” for existing clients but all new clients must be given the opt-in option when providing their details. It is also very important to keep new client forms with the consent in case you have to prove it in future disputes.