Telecom broke anti-spam law

Without a word of a lie, Telecom has broken our anti-spam law - and gotten clean away with it.

The Department of Internal Affairs has found that txt messages from Telecom to its customers broke the Unsolicited Electronic Messages Act (2007) – popularly known as the anti-spam law.

The law allows for a maximum fine of $200,000 for an individual, and $500,000 for an organisation - but only a single fine has been levied since it was passed in 2007. For some, that would raise the question of why the government maintains a spam complaince unit.

Breach confirmed 
In a May 20 letter released under the Official Information Act, DIA Anti Spam Compliance Unit investigator Richard Gane informed Telecom that electronic mail messages sent to its customers between December 2, 2010 and February 1, 2011 fell foul of the act for:

• Not containing a functional unsubscribe facility
• The existing terms of the contract of the person who authorised the message (Telecom) and the recipient did not state that a message need not include an unsubscribe facility.

However, Telecom is off the hook.

The DIA decided to take no action, noting that Telecom revised its terms and conditions on February 1, 2011 to include the fine print “You also agree that the sales and marketing information we send electronically need not include an unsubscribe facility.

(With mind-bending logic, Telecom’s terms and conditions include the fact the company may change its terms and conditions, remove existing terms, or at new terms.)

Mr Gane said the DIA would consider taking action if Telecom re-offended.

The investigator suggested the company include an opt-out option “from time to time” when sending txt messages.

University of Victoria law student Hamish McConnochie, who was responsible for the Official Information Act request, was unimpressed with the result.

Telecom had been able to legitimise its actions retrospectively, Mr McConnochie said.

The law student had no problem with Telecom sending him txt messages under “implied consent” argument (a line of logic used in the company’s correspondence with the DIA, it holds that if a company has an existing commercial relationship with you – by dint of the fact you’ve bought its goods or services – you have implicitly agreed to receive marketing messages).

But he was annoyed by the lack of an unsubscribe option, and the shifting sands of Telecom’s terms and conditions for mobile customers.

The company had managed to “contract its way out of the act” by including acceptance of messages with no “unsubscribe” option in its Terms and Conditions.

Mr McConnochie originally joined Telecom’s CDMA network.

When he upgraded to XT, not terms and conditions were presented; a SIM card was simply handed over the counter.

Mr McConnochie also noted that Telecom is now in the messy situation of having two sets of terms and conditions on its website.

The company has not updated its terms and conditions per ser, but rather broken it into two sets, the first of which has not been updated with the blanked unsubscribe provision:

1. Customers who've signed up prior to 1 February 2011
Mobile Postpaid Agreement
Mobile Prepaid Agreement

2. Customers who've signed up on or after 1 February 2011
Mobile Postpaid Agreement
Mobile Prepaid Agreement

"In terms of the reterospective update of the terms and conditions, I question whether that legitimately excuses Telecom," McConnochie told NBR.

"That also flies in the face of the Act, as I don't understand how an "understanding" can be formed (s 11(2)) when that understanding is created after the messages were sent." 

Telecom had met a "very low threshold, almost contrary to the reason we have this legislation."

Technical difficulties
Before slipping its universal “unsubscribe” disclaimer into its terms and conditions, Telecom tried another tactic. Around November 2011, it sent a two-part message telling customers they could txt “STOP” in reply to an SMS marketing message to opt out of future Telecom marketing txts.

However, the company acknowledged in correspondence with the DIA that not all makes and models of phone can receive two-part txt messages.