Lawyers and other legal advisers are causing needless concern among marketers that they could be prosecuted if they fail to get explicit consent for promotional email, says Keith Norris, head of the New Zealand Marketing Association.
Norris says advisers have embarked on a “feeding frenzy” around the Unsolicited Electronic Communications Act, known as the anti-spam legislation.
“In the last two days, I have received 27 emails from people I have regular dealings with, asking me to confirm that I want to continue getting email from them,” he said last Tuesday, a day before the Act came into force.
This is unnecessary, Norris says. Any merchant who has a long-standing commercial relationship with a customer and has been sending them emails without complaint for years need not worry, he says.
Such a customer has, in the wording of the Act, “inferred” their consent and the merchant need do nothing to verify permission.
The law also says customers may be “deemed” to have consented to receive promotional emails if “an electronic address has been conspicuously published by [them] in a business or official capacity” and that publication is not accompanied by a statement that they do not want promotional email.
Norris stresses that his comments do not apply to anyone who has ignored requests from a customer to remove them from an email marketing list.
“Anyone who does that deserves the full weight of the law,” he says.
“I’m talking about people who behave professionally.”
Members of the Marketing Association should already be observing its code of practice, which has been in place for the past eight years, he says. This code, in essence, parallels the law, advising that emails should only be sent with consent or in the case of an established relationship, and requiring that unsubscribe requests be honoured.
Asking for confirmation unnecessarily may be counterproductive to the merchant’s business, says Norris, as they risk suffering from customer “inertia”. Customers who are perfectly willing to allow the relationship to continue may simply forget to send the confirmatory email.
The merchant may then, under their own policy, have to remove that customer from their database.
Marketing databases may experience severe and needless shrinkage as a result, he says.
Already, large firms such as Air New Zealand and power companies are reporting a disappointing response to requests to confirm, despite inducements such as prize draws.
Any merchant who plays safe and allows such shrinkage in their customer database will have to rebuild it by non-electronic means such as paper advertising and paper-based promotional mail, Norris says.
“I must emphasise that despite what some people might think, I consider [the new Act] to be a good law,” he adds.
InternetNZ executive director Keith Davidson also thinks there has been some overreaction to the Act in terms of sending explicit requests to opt-in.
“We’re all trying to make this an educational exercise in the initial stages,” he says.
“No-one need be frightened that they’re going to be landed with a half-million dollar fine immediately.”