High Court action against alleged spammer
17 February 2011
The Department of Internal Affairs’ Anti-Spam Compliance Unit is again taking High Court action against an alleged spammer, seeking financial penalties of $200,000 against the company principal and $500,000 against his company. The Department has lodged two statements of claim in the High Court in Auckland alleging breaches under the Unsolicited Electronic Messages Act 2007 by Brendan Paul Battles and Image Marketing Group Limited.
In 2008 the Department successfully prosecuted three New Zealanders involved in a major international spam network marketing ‘pharmaceutical products’ such as male-enhancement pills, prescription drugs and weight-loss pills. Brothers, Lance and Shane Atkinson were each ordered to pay $100,000 and Roland Smits $50,000 by the High Court in Christchurch. Lance Atkinson was also ordered to pay $US15.15 million by a US Federal Judge following separate action by the Federal Trade Commission.
The latest court application alleges that in February and March 2009 Image Marketing Group Limited and Brendan Battles sent, or caused to be sent, 44,824 SMS (Short Message Service) messages to mobile phones connected to networks in New Zealand operated by Vodafone New Zealand Limited and Telecom New Zealand Limited.
It is alleged that the SMS messages were unsolicited commercial electronic messages with the primary purpose of inviting the recipient to purchase over the internet a mobile phone antenna booster. In its statement of claim the Department alleges the SMS messages contravened section 9 of the Act in that they were unsolicited, section 10 as they did not include accurate sender information and section 11 as they did not contain an unsubscribe facility that could be used by the recipient at no cost.
The second statement of claim alleges that in December 2009 the defendants, Image Marketing Group Limited and Brendan Battles, sent at least 43 emails to computers connected to the internet and located in New Zealand. These represent a sample of 519,545 substantially similar emails sent or caused to be sent by the defendants between 14 and 15 December 2009.
The Image Marketing Group emails were commercial electronic messages with common features, marketing and promoting New Zealand and Australian marketing data. The Department alleges that the emails were unsolicited and contrary to section 9 of the Act.
In June 2010 the Department issued a press release Beware using purchased email addresses warning about the dangers for companies of marketing and promoting their goods and services to email addresses purchased from database marketing companies.
The Department’s Anti-Spam Compliance Unit has used a range of enforcement actions under the Act including issuing civil infringement notices, written formal warnings and accepting enforceable undertakings from individuals and organisations that have used email addresses contained on databases purchased from Image Marketing Group Ltd.
Under the Unsolicited Electronic Messages Act 2007 penalties carry a maximum of $500,000 for organisations and $200,000 for individuals.
Last week the Department introduced a web page that records its enforcement actions under the Unsolicited Electronic Messages Act 2007.
Information about the Department’s compliance activities can be found at Enforcement Action.
Trevor Henry, senior communications adviser, Department of Internal Affairs
Ph 04 495 7211; cell 0275 843 679