Public Act 2007 No 7

Date of assent 5 March 2007

The Parliament of New Zealand enacts as follows:

1. Title

This Act is the Unsolicited Electronic Messages Act 2007.

2.  Commencement

This Act comes into force 6 months after the date on which it receives the Royal assent.

Part 1

Preliminary provisions

3. Purposes of this Act

The purposes of this Act are to-

(a) prohibit unsolicited commercial electronic messages with a New Zealand link from being sent, in order to-

(i) promote a safer and more secure environment for the use of information and communications technologies in New Zealand? and

(ii) reduce impediments to the uptake and effective use of information and communications technologies by businesses and the wider community in New Zealand? and

(iii) reduce the costs to businesses and the wider community that arise from unsolicited commercial electronic messages? and

(b) require commercial electronic messages to include accurate information about the person who authorised the sending of the message and a functional unsubscribe facility in order to enable the recipient to instruct the sender that no further messages are to be sent to the recipient? and

(c) prohibit address-harvesting software or a harvested-address list from being used in connection with sending unsolicited commercial electronic messages in contravention of this Act? and

(d) deter people from using information and communications technologies inappropriately.

4. Interpretation

(1) In this Act, unless the context otherwise requires,-

address-harvesting software means software that is capable of, or marketed for use for,-

(a) searching the Internet for electronic addresses? and

(b) collecting, compiling, capturing, or otherwise harvesting those electronic addresses

chief executive means the chief executive of the enforcement department

civil liability event has the meaning set out in section 18

commercial electronic message has the meaning set out in section 6

consented to receiving-

(a) means-

(i) express consent, whether given by the relevant electronic addressholder

or any other person who uses the relevant electronic address? or

(ii) consent that can reasonably be inferred from-

(A) the conduct and the business and other relationships of the persons concerned? and

(B) any other circumstances specified in the regulations? or

(iii) consent that is deemed to have been given when the following circumstances apply:

(A) an electronic address has been conspicuously published by a person in a business or official capacity? and

(B) the publication of the address is not accompanied by a statement to the effect that the relevant electronic address-holder does not want to receive unsolicited electronic messages at that electronic address? and

(C) the message sent to that address is relevant to the business, role, functions, or duties of the person in a business or official capacity? but

(b) does not include the circumstances specified in the regulations from which consent cannot be inferred

Court means, as appropriate, the District Court, the High Court, or either of them

electronic address means an address used in connection with-

(a) an email account? or

(b) an instant messaging account? or

(c) a telephone account? or

(d) a similar account

electronic message has the meaning set out in section 5

enforcement department means the department of State that, with the authority of the Prime Minister, is responsible for exercising the powers in Part 3

enforcement officer means a person who is appointed as an enforcement officer under section 21

goods has the same meaning as in section 2(1) of the Consumer Guarantees Act 1993

government body means-

(a) a department named in Part 1 of Schedule 1 of the Ombudsmen Act 1975:

(b) a Crown entity as defined in section 10(1) of the Crown Entities Act 2004

harvested-address list means-

(a) a list of electronic addresses? or

(b) a collection of electronic addresses? or

(c) a compilation of electronic addresses,-

where the production of the list, collection, or compilation is, to any extent, directly or indirectly attributable to the use of address-harvesting software

individual means a natural person, other than a deceased natural person

message means information, whether in-

(a) the form of text or writing? or

(b) the form of data? or

(c) the form of speech, music, or other sounds? or

(d) the form of visual images (animated or otherwise)? or

(e) any other form? or

(f) any combination of forms

mistake means a reasonable mistake of fact organisation includes-

(a) a corporation sole? and

(b) a body corporate? and

(c) an unincorporated body or association? and

(d) a partnership? and

(e) a government body? and

(f) a court or tribunal

person means-

(a) an individual? and

(b) an organisation

recipient, in relation to the sending of an electronic message to an electronic address, means-

(a) the relevant electronic address-holder? and

(b) any other person who uses that electronic address

regulations means regulations made under this Act relevant electronic address-holder means the person who is responsible for the relevant electronic address send includes an attempt to send service provider means a provider of a telecommunications service services has the same meaning as in section 2(1) of the Consumer Guarantees Act 1993 telecommunication has the same meaning as in section 5 of the Telecommunications Act 2001 telecommunications service means any goods, services, equipment, and facilities that enable or facilitate telecommunication unsolicited commercial electronic message means a commercial electronic message that the recipient has not consented to receiving.

(2) For the purposes of this Act, an electronic message has a New Zealand link if 1 or more of the following applies:

(a) the message originates in New Zealand:

(b) the person who sent the message is-

(i) an individual who is physically present in New Zealand when the message is sent? or

(ii) an organisation whose central management and control is in New Zealand when the message is sent:

(c) the computer, server, or device that is used to access the message is located in New Zealand:

(d) the recipient is-

(i) an individual who is physically present in New Zealand when the message is accessed? or

(ii) an organisation that carries on business or activities in New Zealand when the message is accessed:

(e) if the message cannot be delivered because the relevant electronic address does not exist, assuming that the electronic address existed, it is reasonably likely that the message would have been accessed using a computer, server, or device located in New Zealand:

(f) it is sent to an electronic address that-

(i) ends with “.nz” ? or

(ii) begins with an international access code directly followed by “64″.

Compare: Spam Act 2003 ss 4, 7, Sch 2 (Aust)? 2001 No 103 s 5

5 Meaning of electronic message

(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.

Compare: Spam Act 2003 s 5 (Aust)

6 Meaning of commercial electronic message For the purposes of this Act, 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? or

(iii) provides a link, or directs a recipient, to a message that does 1 or more of the things listed in subparagraphs (i) and (ii)? but

(b) does not include an electronic message that-

(i) provides a quote or estimate for the supply of goods or services if that quote or estimate was requested by the recipient? or

(ii) facilitates, completes, or confirms a commercial transaction that the recipient previously agreed to enter into with the person who authorised the sending of the message? or

(iii) provides warranty information, product recall information, or safety or security information about goods or services used or purchased by the recipient? or

(iv) provides notification of factual information about a subscription, membership, account, loan, or similar relationship involving the ongoing purchase or use by the recipient of goods or services offered by the person who authorised the sending of the message, or the recipients ongoing subscription, membership, account, loan, or similar relationship? or

(v) provides information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled? or

(vi) delivers goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously entered into with the person who authorised the sending of the message? or

(vii) provides the recipient with information about goods or services offered or supplied by-

(A) a government body? or

(B) a court or tribunal? or

(viii) has any other purpose set out in the regulations.

Compare: Spam Act 2003 s 6 (Aust)

Public Act 2002 No 35

Date of assent 17 October 2002

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Electronic Transactions Act 2002.

2 Commencement

(1) This Act (except sections 14(3) and 36) comes into force on a date to be appointed by the Governor General by Order in Council.

(2) Sections 14(3) and 36 come into force on the day after the date on which this Act receives the Royal assent.

Part 1

Preliminary

3 Purpose

The purpose of this Act is to facilitate the use of electronic technology by-

(a) reducing uncertainty regarding-

(i) the legal effect of information that is in electronic form or that is communicated by electronic means? and

(ii) the time and place of dispatch and receipt of electronic communications? and

(b) providing that certain paper based legal requirements may be met by using electronic technology that is functionally equivalent to those legal requirements.

4 Overview

In this Act,-

(a) matters concerning the legal effect of information that is in electronic form or that is communicated by electronic means are set out in section 8:

(b) default rules about the time and place of dispatch and receipt of electronic communications are set out in sections 9 to 13:

(c) key provisions concerning the use of electronic technology to meet certain legal requirements are set out in sections 14 to 17:

(d) provisions that specify certain legal requirements that may be met by using electronic technology, and how they may be met, are set out in sections 18 to 32.

5 Interpretation

In this Act, unless the context otherwise requires,-

data storage device means any article or device (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric, and photonic

electronic communication means a communication by electronic means

electronic signature, in relation to information in electronic form, means a method used to identify a person and to indicate that person’s approval of that information

information includes information (whether in its original form or otherwise) that is in the form of a document, a signature, a seal, data, text, images, sound, or speech

information system has the meaning set out in section 10(2)

legal requirement has the meaning set out in section 15(2)

Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

transaction includes-

(a) a transaction of a noncommercial nature:

(b) a single communication:

(c) the outcome of multiple related communications.

6 Further provision relating to interpretation

In interpreting this Act, reference may be made to-

(a) the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law on 16 December 1996:

(b) any document that relates to the Model Law that originates from the United Nations Commission on International Trade Law, or its working group for the preparation of the Model Law.

7 Act binds the Crown

This Act binds the Crown.

Part 2

Improving certainty in relation to electronic information and electronic

Communications

Validity

8 Validity of information

To avoid doubt, information is not denied legal effect solely because it is-

(a) in electronic form or is in an electronic communication:

(b) referred to in an electronic communication that is intended to give rise to that legal effect.

Default rules about dispatch and receipt of electronic communications

9 When default rules in sections 10 to 13 apply

Sections 10 to 13 apply to an electronic communication except to the extent that-

(a) the parties to the communication otherwise agree:

(b) an enactment provides otherwise.

10 Time of dispatch

(1) An electronic communication is taken to be dispatched at the time the electronic communication first enters an information system outside the control of the originator.

(2) For the purposes of sections 10 and 11, information system means a system for producing, sending, receiving, storing, displaying, or otherwise processing electronic communications.

11 Time of receipt

An electronic communication is taken to be received,-

(a) in the case of an addressee who has designated an information system for the purpose of receiving electronic communications, at the time the electronic communication enters that information system? or

(b) in any other case, at the time the electronic communication comes to the attention of the addressee.

12 Place of dispatch

An electronic communication is taken to be dispatched from-

(a) the originator’s place of business? or

(b) if the originator has more than 1 place of business,-

(i) the place of business that has the closest relationship with the underlying transaction? or

(ii) if there is no place of business to which subparagraph (i) applies, the originator’s principal place of business? or

(c) in the case of an originator who does not have a place of business, the originator’s ordinary place of residence.

13 Place of receipt

An electronic communication is taken to be received at-

(a) the addressee’s place of business? or

(b) if the addressee has more than 1 place of business,-

(i) the place of business that has the closest relationship with the underlying transaction? or

(ii) if there is no place of business to which subparagraph (i) applies, the addressee’s principal place of business? or

(c) in the case of an addressee who does not have a place of business, the addressee’s ordinary place of residence.

Part 3

Application of legal requirements to electronic transactions