Cunliffe David: Unsolicited Electronic Messages Bill — Second Reading 
Cunliffe David: Unsolicited Electronic Messages Bill — Second Reading 
[Volume:636;Page:6849] 
Hon DAVID CUNLIFFE (Minister for Information Technology) 
: 
 I move  
That the Unsolicited Electronic Messages Bill be now read a second time 
. In speaking to the second reading of the bill I first extend my thanks to the Commerce Committee for its excellent work on the bill. The committee gave full consideration to all of the public submissions received and the bill as reported back incorporates a number of changes that reflect those submissions. 
Unsolicited electronic messages more commonly known as spam were estimated to comprise approximately 80 percent of all email traffic worldwide when this bill was first mooted. Since then the flood of spam has only got worse. I have seen estimates by Internet service providers that spam now makes up around 90 percent of all emails. This problem is serious it is urgent and this Government is taking action on it. Spam clogs up networks reduces productivity and is often used for scams and malicious cyber-attacks. Spam is always a nuisance and is often much worse than that. 
The Unsolicited Electronic Messages Bill is an important part of the Government’s strategy to curb spam in New Zealand. It aims to prevent New Zealand from becoming a haven for spammers to promote good e-marketing practice and to provide a basis for international cooperation on combating spam. It contains prohibitions and requirements relating to the sending of commercial electronic messages. It also establishes a civil enforcement regime including high maximum financial penalties for breaches. 
I now turn to consider some of the key provisions of the bill; firstly the commencement and preliminary provisions. The Government supports the following changes recommended by the Commerce Committee: an extension from 4 months to 6 months for the transition period between the enactment date and the commencement date so that organisations can have enough time to achieve compliance; an amendment to the purpose clause to better reflect the broad social and economic objectives of the bill; and an amendment to the definition of a commercial message so that an electronic message need not have commercial promotion or marketing as its primary purpose in order to be defined as spam and so that messages containing hyperlinks to commercial promotional messages can also be deemed as spam. 
In respect of restrictions on electronic messages submissions were supportive of the provision that a recipient of a commercial electronic message must consent to receive the message. This is known as an opt-in system and it is contained within the majority of such similar legislation worldwide. However submissions expressed some concern about there being possible confusion between promotional messages and commercial messages. Promotional electronic messages are non-commercial messages from an organisation promoting its aims such as religious or political messages. I note that this House has been treated in recent weeks to a considerable volume of such messages in a recent book by Mr Nicky Hager. The bill as introduced includes a requirement that persons do not send promotional electronic messages to any person who has “opted out” of receiving such messages from the sender—notwithstanding the fact that some members of this House occasionally forget whether they have opted out. 
The Commerce Committee recommends the removal of promotional messages from the bill and the Government supports this change in order to achieve clearer legislation focused on combating the main problem of commercial spam. The bill requires senders of commercial electronic messages to include accurate sender information and an unsubscribe facility so that the recipient can unsubscribe from future commercial electronic messages from that sender. The select committee has recommended that the requirements of the unsubscribe facility be changed so that recipients can unsubscribe by using the method of sending. The Government supports these changes. 
In respect of address-harvesting software the bill as introduced included prohibitions on the supply and acquisition of address-harvesting software and harvested-address lists with the intention to use lists for spamming purposes. The select committee has recommended the removal of clauses regarding the supply and acquisition requirements. This is to focus the bill on the use of address-harvesting software and harvested-address lists for spamming purposes as this is where the harm has occurred. 
Part 3 “Enforcement provisions” proposes a civil enforcement regime. It provides for financial penalties up to a maximum of $500000 for organisations and $200000 for individuals. High maximum penalties reflect the potentially high financial gains to be made from spamming and the fact that spamming is a business with a very low-cost business model and one that potentially offers the spammer high financial returns. In order to address the problem of spam it is important to ensure that that business does not pay. 
The bill as introduced required that the enforcement agency could consider only complaints regarding spam from service providers but could not consider complaints from any other person. It could investigate possible breaches on its own initiative. The reason for that requirement was to make clear that service providers would be the first point of contact for their customers who may have had concerns about spam. The committee recommended removing that requirement. It was concerned that the requirement would place unreasonable burdens on service providers. The committee expected—and we agree—that most users would first contact their service providers if they wished to complain about spam but it was inappropriate to require that as a legal obligation. The Government supports that change. 
The Internet Society of New Zealand sought in its submission to have the enforcement agency under the bill take an expanded role in monitoring spam and receiving and investigating spam complaints. The select committee has recommended that the role of the enforcement agency be expanded by amendments being made to the provisions setting out the agency’s functions and powers. These amendments include a requirement that the enforcement agency monitor levels of spam that contain sexual material. The Government supports these changes. 
The Legislation Advisory Committee has expressed the view that the proposed enforcement regime for the Unsolicited Electronic Messages Bill should be criminal rather than civil. The committee’s reasons were that the high maximum financial penalties for breaches indicated an intention to punish offenders thus the protections of the criminal law should apply. The Government has consulted a number of submitters and considers that the civil enforcement regime should be retained. The purpose of anti-spam legislation is not the punishment of offenders but to curb spam. Fraudulent actions and cyber-attacks using spam are already covered by existing criminal legislation. 
The Unsolicited Electronic Messages Bill is important legislation that reflects the significant role that information and communications technologies play in our lives both now and in the future. It provides a regulatory framework for commercial electronic messages in order to prevent New Zealand from becoming a safe haven for spammers promotes good e-marketing practice and provides a basis for international cooperation on combating spam. If New Zealand is to realise fully the benefits of information and communications technologies then users of those technologies must have trust and confidence in them. The Unsolicited Electronic Messages Bill supports this objective. As such I commend it to the House.