InternetNZ was apparently onto a loser from the start with its request to the Commerce Commission to investigate Christchurch spammer Shane Atkinson under the Fair Trading Act.
“The primary focus of the complaint was on the spam aspect [of Atkinson’s propotion for alleged penis-enhancing pills], says Commission fair ttrading director Deborah Battell. “From a fair trading aspect, spamming per se is not illegal.” So there was no action the Commission could have taken, she says.
As far as the efficacy of Atkinson’s product was concerned, Medsafe, the Health Ministry’s medicines regulation arm, had also received a letter from InterneNZ, “and there’s not a lot of point in two agencies investigating the same matter,” Battell says.
Medsafe declined to act because Atkinson has undertaken to stop selling the products.
The Commission also suggests, in a letter to InterneNZ secretary David Farrar that the fact that its resources are limited and that few other complaints about Atkinson had been received were also factors in its decision not to act.
“Each year the Commerce Commission receives a large amount of information about potential breaches of the Fair Trading Act and we are not able to investigate every case,” says the letter, signed by “contact centre adviser” Melissa Hoffman.
“The Commission, therefore, has developed a set of criteria to identify issues where consumers and businesses will benefit the most from the Commission taking action.
"These criteria allow the Commission to focus its enforcement activities on areas where its information gathering about business and business behaviour shows that breaches of the legislation are the most serious and most common.
“In assessing your particular issue, a review of our database shows that there does not appear to be a widespread problem with the industry, nor have there been many other people bringing Shane Atkinson to our attention.”
But the lack of a specific law against spamming was the prime factor, says Battell. There is clearly a problem, she concedes, “which is why [legislative bodies overseas] are taking action.”
Associate IT minister David Cunliffe has signalled possible action against spam in New Zealand, following a study of the question by MED officials. However, he and one of the officials have indicated that fundamental rights to freedom of expression might present a problem in formulating law (see Computerworld, October 13, page 3).