Cunliffe David: Unsolicited Electronic Messages Bill — First Reading 
Cunliffe David: Unsolicited Electronic Messages Bill — First Reading 
[Volume:628;Page:1043] 
Hon DAVID CUNLIFFE (Minister for Information Technology) 
: 
 I move  
That the Unsolicited Electronic Messages Bill be now read a first time. 
 I will move in due course that this bill be considered by the Commerce Committee. 
In just a few years unsolicited commercial email generally known as spam has gone from being a minor nuisance to becoming a significant social and economic issue. It is also a drain on the business and personal productivity of New Zealanders. Spam impedes the effective use of email and other communication technologies for personal and business communications. It threatens the growth and acceptance of legitimate e-commerce. Spam technology is also increasingly being used as the delivery mechanism for computer viruses phishing and identity theft. 
Spam is a multifaceted problem that requires coordinated action from Government industry marketers and consumers working together on several fronts such as self-regulatory measures. Industry codes are useful steps forward; for example that of the New Zealand Direct Marketing Association which has in place a set of standards for email marketing and a spam code of practice that is currently being developed by InternetNZ in conjunction with the Telecommunications Carriers Forum. Education and awareness campaigns need to be run for business and Internet users. Controlling spam requires technical measures such as the use of filtering by Internet service providers and users international cooperation and coordination and of course legislative and regulatory measures. 
New Zealand already has many of those measures in place. However reliance upon on the existing legislative framework codes of practice industry and user education and technical measures alone has shortcomings. The degree of public concern and the growing cost to our economy have made it clear that it is now time for specific anti-spam legislation. Without that legislation and without a specific anti-spam enforcement agency New Zealand runs the risk of being seen as a safe haven for spammers and it will lack a firm basis upon which to enter into multilateral agreements with other countries to address the problem of spam originating from overseas. 
Enactment of this bill is part of a multi-pronged approach to address the problem of spam and will provide the following benefits: it will prohibit spam and enable legal action to be taken against spammers based in New Zealand it will regulate the sending of commercial electronic messages it will prevent New Zealand from being seen as a safe haven for spammers and it will provide a basis for New Zealand to participate in international regulatory arrangements to curb the growth of spam. The bill also sets out an enforcement regime based on civil penalties and the ability to take preventive action. 
The design of anti-spam legislation requires the resolution of issues such as what messages are covered who should be covered and what amounts to consent to receive messages. The resolution of these issues requires the balancing of a number of factors such as the seriousness of the problem compliance costs for business and the right to freedom of expression. The legislation will apply to electronic messages including email text messages and instant messages but not to facsimile messages and voice calls. It will apply to commercial messages—that is those that are primarily for the purpose of marketing or promoting goods or services land or an interest in land or a business or investment opportunity or for the purposes of assisting or enabling a person by deception to dishonestly obtain a financial advantage or a gain from another person. It includes promotional messages—that is those that market or promote an organisation’s aims and ideals other than where a recipient has not opted out. The legislation will apply to messages with a New Zealand link messages sent within or from New Zealand messages authorised by a person or organisation from New Zealand and messages sent to people in New Zealand from overseas. 
The legislation will require specified commercial and promotional electronic messages to have accurate sender identification and a functional “unsubscribe” facility—that is a working and clearly visible means of opting out of future such messages. These measures empower Internet service providers businesses and users to better control the email they have to deal with. The bill will prohibit the supply and use of address-harvesting software and address-harvested lists for spam purposes. 
The legislation will be enforced through a regime that provides for a range of civil pecuniary penalties and remedies. The enforcement regime will be based on a tiered structure with emphasis on Internet service providers and telecommunications carriers taking action in response to customer complaints in the first instance. If complaints cannot be satisfactorily resolved in this way then the user’s Internet service provider can forward the matter to the enforcement agency. The enforcement agency will then consider whether an investigation or further action is appropriate. The Government enforcement agency will have a range of penalties available to it. That will enable it to adopt a flexible approach to enforcement. 
Under this legislation Internet service providers and users affected by contraventions of the legislation will also have the right to take direct legal action as well as to join any action taken by the enforcement agency. The agency will have responsibility for carrying out any investigations regarding complaints referred to it by Internet service providers carriers or users on matters that it considers should be investigated; issuing warning and infringement notices; taking legal action where appropriate; and cooperating with overseas enforcement agencies. 
In conclusion the Unsolicited Electronic Messages Bill gives effect to the Government’s decision to enact anti-spam legislation as part of a multi-pronged strategy to reduce and control spam.