Auchinvole Chris: Unsolicited Electronic Messages Bill — Second Reading 
Auchinvole Chris: Unsolicited Electronic Messages Bill — Second Reading 
[Volume:636;Page:6851] 
CHRIS AUCHINVOLE (National) 
: 
 The security and confidentiality of one’s own mail and the right to control it be it electronic or otherwise is fundamental to a free society. I rise to support the Unsolicited Electronic Messages Bill in its second reading. This bill will I suggest be well received by the general public once it is ushered into law as it makes a clear statement on the unacceptability of spam in the email systems that are used by an ever-increasing percentage of the population. Interestingly enough as the Minister has advised it transpires that 90 percent of all emails sent or received fall into the category of spam—that is stuff that no one ever wants or has asked for and that no one would have wanted if asked. I guess we all know from personal experience or from the experience of members of our family that feeling of opening up the screen and the first thing we see being a great pile of unsolicited often rubbish mail—much of which is offensive. The main difficulty most people have is that they have to trundle through all the rubbish to sort out the emails that they do want deleting the rubbish as they go. It is a bit like rummaging through a dustbin. There is a very real perception that spam—unwanted electronic messages—could destroy email as a system of responsible communication if it were allowed to continue unabated or go unchecked. 
Very little spam is generated in New Zealand at present it would seem. On the international scale only an infinitesimal amount is estimated to originate from here. However in considering this bill at the Commerce Committee and later in the National caucus it was recognised that we have to put this bill forward as an important part in the international jigsaw of combined international activities. New Zealand is part of the international action against perpetrators of spam and stands shoulder to shoulder with other sovereign States doing the same thing. We see that it is important that we do so in order to build fences beyond which spammers cannot reach. We also want to make it plain that we are not a soft target for spammers to use. This bill fulfils part of the strategy against spam which also includes improved education technical solutions and international law enforcement. 
Getting rid of the stuff is not a simple matter and I have been very impressed with the quality of the submissions that the select committee received and the detailed discussions during the committee process. To the recipients of spam of course the requirement is plain. In a lot of discussion it has simply been said: “Get rid of it.” The important aspect of the legislation is to ensure that the laws we are bringing into being avoid having unforeseen outcomes that negate the good that is being done. 
The officials worked diligently I considered in advising the committee as we made our considerations on this bill. The submitters were not without credence in the field of electronic messaging. TradeMe sent along its commercial and regulatory manager and its Government relations manager. It sends out 1.8 million site-generated emails each week and is by far the largest Internet company in New Zealand. TradeMe as a company welcomes and supports this bill and offered useful recommendations in its submission. The New Zealand Bankers’ Association provided a detailed submission on the issue and sought a slightly longer period to arrange for customers to have a transference of systems which the Minister mentioned in his opening speech on the bill. The National Council of Women the New Zealand Law Society the New Zealand Marketing Association the Privacy Commissioner Microsoft the New Zealand Press Association Telecom Telstra Vodafone and a whole host of others all made submissions supporting this bill. It is significant that there was such a united voice on the issue. 
I think there are grounds to conclude that the same response would be received over the improper collection of other people’s emails by parties that the emails were not intended for. The control of one’s own correspondence is a subject that is not without current significance. I am not a betting man by nature but I am prepared to put a bob or two on the safe bet that most people in New Zealand find mail theft a repugnant practice quite apart from the legal aspect of it. I have been impressed with the indignation of those with whom I have discussed email spam. I am equally impressed with the indignation of those who have spoken to me about people accessing other people’s emails. Those same persons are not inclined to be persuaded that such theft could be “justified” on the basis of political intrigue. They just find it disgusting to think that emails can be filched and used beyond the control of their author. Perhaps this legislation about unwanted electronic mail may impact eventually on those who want other people’s mail which they have no entitlement to. 
The bill restricts the sending of unsolicited commercial emails which are punishable by large fines. Non-commercial emails can continue to be sent but must contain opt-out provisions. The details of what constitutes an electronic message are quite precise in the bill and are detailed in Part 1. Those can be covered in the Committee stage but for the sake of clarity and as a courtesy to those members of the public who are listening in to this second reading I will quickly read the meaning of “electronic message” and “commercial electronic message”. Clause 5 “Meaning of electronic message” states: “(1) For the purposes of this Act an electronic message is a message sent—(a) using a telecommunications service; and (b) to an electronic address. (2) However the messages listed in clause 1 of the Schedule are not electronic messages. (3) For the purposes of subsection (1) it is immaterial whether—(a) the electronic address exists; or (b) the message reaches its intended destination.” Clause 6 “Meaning of commercial electronic message” states on the other hand that a commercial electronic message “(a) means an electronic message that—(i) markets or promotes—(A) goods; or (B) services; or (C) land; or (D) an interest in land; or (E) a business or investment opportunity; or (ii) assists or enables a person to obtain dishonestly a financial advantage or gain from another person;”. The details go on and as I say will probably be covered in the Committee stage. 
There was an initial amount of debate over whether one should be able to opt in or opt out of receiving mail. This was resolved in a straightforward manner by simply prohibiting unsolicited commercial emails. There was some initial confusion about the difference between commercial— 
Darren Hughes 
: Why are you reading it out? Why don’t you speak from the heart? 
CHRIS AUCHINVOLE 
: I certainly do speak from the heart. Has he got one? 
I turn to promotional messages. The National members of the select committee can take some measure of credit for resolving the promotional aspect. In other words we should be protected from spam ever originating in New Zealand and should that occur we have redress facilities available to us in the law. With regard to the law and its enforcement it should be noted that the search warrants required will be available to enforcement officers only when they apply for them on a case by case basis. The enforcement authority will not have a blanket warrant. 
The legal proceedings involved in this bill are to be in a civil liability regime. When the bill was initially put forward a criminal liability regime was proposed. This was part of the original legislation that was looked at in Australia. It has been decided though to use the civil liability regime here with a criminal regime able to be considered at a future date if necessary. 
It is beyond doubt that this bill has been considerably improved by the select committee. A number of initiatives towards improvement were generated by the National and the United Future members of the committee and the whole committee with Katherine Rich as chair went very much in harmony to reach a sensible practical and workable outcome. The division of emails into commercial and promotional has been dropped so as to avoid spammers using the excuse of sending promotional emails. Promotional emails may continue to be sent but must be non-commercial and contain opt-out provisions. 
There were submissions on the provision in the bill for members of the public experiencing spam to complain to their Internet service provider in the first instance. That provision has been dropped. It would have placed an unrealistic burden on the Internet service providers which are already battling spam with technical solutions. One of the most impressive aspects of the submissions was the Internet service providers’ efforts which they are currently engaged in to avoid and eliminate spam. It has been most worthwhile putting this bill after it was brought to the select committee into its present form. Thank you Madam Speaker.