Facebook, Twitter and the Anti-Spam Law

In recognition of the fast-growing power of Facebook in particular, Trade Me last week added social sharing links to all auction listings, enabling visitors to share any listing on either Facebook or Twitter.

The move raises an interesting question: does using Twitter and Facebook to pass on commercial messages contravene NZ’s Unsolicited Electronic Messages Act?

When New Zealand’s anti-spam legislation came into effect in September 2007, it had at least one unintended consequence on otherwise-legitimate New Zealand marketers: the previously popular device of “Friend Get Friend”, FGF, (encouraging consumers to tell their friends about the sponsor’s fine products — suddenly fell into a very grey area.

Given the provisions of the Act, was FGF now illegal (as seemed to be the case)? The question was of especial importance to Trade Me, who had previously provided easy email facilities for members to email auction details to their friends. It was a great method of helping unusual auctions to go viral. Was the party now over?

The Unsolicited Electronic Messages Act was intended to stamp out spammers, not hinder legitimate Kiwi businesses just trying to market their wares effectively. Would the Act kill “advertiser-assisted” viral marketing?

You’ll be relieved to learn that,after a time of wonder, a reasonable interpretation of the Act led to the following advice being given by the Department of Internal Affairs (who administer the Act):

Friend get friend campaigns, or ‘viral marketing’, usually encourage subscribers to provide the name and email address of a friend who is then sent a commercial electronic message and emailed by the company or promoter encouraging them to opt in/register.

An electronic message such as this would be unsolicited because the friend has not consented to receiving the message from the company or promoter. Consequently if the message was commercial (i.e. marketing or promoting goods, services, land, a business or investment opportunity) it would be considered spam. However, if the companies’ email is forwarded by the recipient to a friend(s) this is usually okay.

For example: A and B are good friends, and send each other emails on a routine basis. Company C has an express consent from A to send commercial emails to them. A then decides to forward to B commercial emails he received from company C. If it can be assumed from the relationship that B is happy to receive the commercial emails forwarded by A, consent could reasonably be inferred.

That consent, however, will not exist between the company and B. If the company only had A’s consent, it cannot assume B has consented to receive its commercial emails.

In most cases, the relationship between A and B is not likely to be of interest to the Anti-Spam Unit, unless B complained about A’s emails. In that case, the onus will be on A to show that inferred consent existed.

In other words, if marketers solicit friends’ email addresses and then send out commercial entreaties, that’s spam. But if marketers merely provide the tools for consumers to use, that should typically be a permitted arrangement under the Act.

BUT WAIT

Skip ahead a couple of years and now there’s Twitter and Facebook being used in a Friend Get Friend capacity — not just by Trade Me, of course, but their example started us thinking about those services and marketers’ increasing attempts to harness the power of the social networks for commercial gain.

Before you ask — no social networking service is specifically mentioned in the Act, but the carefully-constructed legislation catches them anyway. The Act governs the sending of Unsolicited Electronic Messages to electronic addresses, and defines the latter thus:

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

In other words, Twitter and Facebook (and other digital distractions not yet born) are caught in the Act (under ‘d’) in the same way as email et al.

FRIEND TWEET FRIEND?

You’d have to say that a whole lot of the nutrition-free birdseed spread through the twitterverse would indeed attract a “Caution — may contain spam” label. Of course, if you sign up to follow a Twitterer, you are effectively giving permission to them to send you stuff — and if they’re a commercial enterprise, then clearly you can expect to receive commercial messages.

But what if you follow an individual, who typically shares his/her transient living habits (“What a night — ### was SO ######d”). Suddenly, you receive a tweet about an auction — or a new CD — or whatever. Spam? Back to that grey area.

IN YOUR FACEBOOK

Same scenario, different planet. Your Facebook Newsfeed, usually so trivial/personal, is suddenly polluted by a commercially corrupted, soon-to-be-un-friend.

Spam too? Looks that way, especially if there’s a marketer lurking in the wings fanning the friendly flames of ‘Free! Buy now!’.

As potentially global marketers we should also be conscious of the need for transparency in the online space (as demanded by the US Federal Trade Commission and its October 2009 Guidelines requiring that that bloggers and other marketers be upfront and honest about endorsements and testimonials, and disclose when promotional commentary has been paid for by the producers of any product or service being endorsed). We may not have legislated for that transparency in NZ yet (except perhaps loosely under the Fair Trading Act), but it’s probably on someone’s agenda for the near future.

WASSUP THEN?

We’re of the view that the Trade Me example — mild encouragement to share socially with friends — is as acceptable under the legislation as was moderate emailing encouragement back in the day (circa 2007).

But we’d certainly warn Kiwi travel marketers (especially those fishing for prospects offshore) to proceed with caution when inviting consumers to spruik on their behalf in the social sphere.

It may be a new frontier but it’s neither unpoliced nor unpunished.

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