Anti-spam offender's $12,000 penalty reduced to $250

The man who unsuccessfully fought the first defended anti-spam case in New Zealand has managed to reduce his “far too high” $12,000 penalty to just $250.

In January last year, Auckland man Zeljko Aksentijevic was fined for sending spam emails in breach of the Unsolicited Electronic Messages Act.

The Department of Internal Affairs says the case, which was heard in July 2014, was the first defended anti-spam case in New Zealand.

It took action against Mr Aksentijevic after receiving complaints from the public about spam emails, with the man ultimately found to have sent 2230 commercial electronic messages which included links to his free Android app, Crazy Tilt Arcade Challenge.

The messages were mostly sent to members of an internet gaming forum, following an online argument, and were mainly abusive in nature, as well as containing links to a webpage promoting the app.

He breached the act because the messages were unsolicited, did not include accurate sender information, and did not include an unsubscribe option.

Judge Charles Blackie said the main purpose of the $12,000 penalty was to serve as a deterrent against such conduct, although he noted the abusive nature of the emails was an aggravating factor.

Last month, Mr Aksentijevic appealed against the decision, as well as the penalty, before Justice Peter Woodhouse in the High Court at Auckland.

And in a decision released yesterday, the judge has reduced the penalty from $12,000 to $250. The liability appeal was, however, dismissed.

Justice Woodhouse says the starting point adopted in the Manukau District Court was “far too high.”

The department suggested the penalty should reflect the purpose of reducing costs to businesses and the wider community which arise from unsolicited commercial electronic messages.

But the judge found there was no evidence of any financial cost, and the abusive nature of the emails did not warrant an “uplift” to the penalty.

“There is also an aspect of this which indicates how far removed the objective and content of these emails were in real terms from the sorts of emails the act is primarily concerned with: abuse of a potential purchaser is not what is usually encountered when someone is trying to promote or market goods or services.”

Mr Aksentijevic’s unrealistic chances of paying the fine from his income was also considered by the judge, who found the maximum penalty could be no more than $1000.

“Because this did amount to a test case, on liability and on penalty at this very low level of offending, and because of the indication of modest financial means, the penalty should be $250.”

The District Court costs order against Mr Aksentijevic stands.

Read the judgment here.

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