Telecom Under Investigation for Abusive txt-bombing

Telecom Under Investigation for Abusive txt-bombing

07 February 2011

TELECOM is at risk of facing punishment from the Department of Internal Affairs (DIA), after sending its customers promotional text messages which appear to breach the Unsolicited Electronic Messages Act 2007 (UEMA).

Telecom is currently under pending investigation by the DIA after failing to comply with the opt-out facility requirements of UEMA.

Under section 11 of UEMA, any message of a commercial nature is required to feature a functional opt-out facility. This needs to be expressed to the user.

Telecom’s text messages have failed to comply with the above requirement. In a message sent around 26 November, Telecom sent a text stating
“Remember: if, at anytime, you no longer want 2 receive offer TXTs you can reply STOP. Otherwise, u agree that offer TXTs no longer need to incl an opt-out msg.”

Section 11 does not permit companies to use such methods to circumvent the expressed requirement. UEMA does state that opt-out facility notices are not required if there is an agreement or understanding between sender and recipient. When considering the purpose of UEMA, that text message would not reach the threshold for an agreement to have been formed.

Nothing in Telecom’s user agreement relates to not requiring an opt-out message in commercial messages, either.

Since November 26, Telecom has sent customers several more text messages, none of which contained the required opt-out facility notice.

So far, there has only been one prosecution under UEMA, in 2009. Lance Atkinson was fined $100,000 after sending more than 2 million messages, none of which had a functional opt-out facility.

UEMA has been criticised as being a ‘token’ piece of legislation. Now Attorney-General, Chris Finlayson, described UEMA as being merely “aspirational”. Whether or not the DIA attempts to prosecute Telecom will be the test of Finlayson’s claims.

ENDS

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