Putting Spam in the Can: Address to Internet NZ Spam Workshop

24 June
Address to Internet NZ Spam Workshop

Good morning.

Thank you very much to Internet NZ for organising this workshop. I am sure it will be productive and I look forward to hearing about the discussions and receiving your feedback on the discussion document.

My mother is in her 80s. I hope she doesn't mind me telling you all. And she is about to get on line. She wants to be able to keep in touch with the family and is looking forward to me sending her far too many pictures of her grandson.

What worries me is that when she gets on line, before she gets to the family photos she is going to have to trawl through pornography, ads for a range of drugs that will, among other things, make her ten feet tall and bullet proof, and offers to look after $30 million dollars for a recently deceased Nigerian businessman.

I don't want her to see that. I want her to be able to check her email every day and not have to trawl through the offensive rubbish that we are all experiencing.

I know that we can all agree that our families should be protected from spam. I am going to do everything I can to make that happen and I want your help with it.

Of course there is another good reason for wanting to kill spam.

It is costing a fortune.

A European Union study suggests that the world-wide cost to internet subscribers is in the vicinity of EUR 10 billion a year. An American study estimated in 2003 that spam is costing $US874 a year per office worker with an email account. This adds up to $87 billion across the US economy.

When you look at these figures in light of the rate that spam volumes are increasing it is clear that spam is a major global problem. Ihug stopped 5.1 million spam emails in September 2003 and 6.5 million in November that year. It said that of the 29 percent of its customers who use its spam filter, spam accounts for 75 percent of their email.

If the internet is the information superhighway it is developing a problem that the Aucklanders here will be able to relate to. And like any congestion it costs money. That is bandwidth that would be much better used for surfing the Beehive website to see what great work this Government is doing or downloading government discussion documents

As you know, we are going through a consultation process at the moment on the Spam Discussion Document. We are seeking your views on a range of legislative issues which I will outline shortly.

What I will say to you now that there will be a stand alone piece of legislation. It will be legislation with teeth. In my view it should be an "opt in" model and it will have a penalties system that will put New Zealand spammers out of business. And I intend to have it introduced to the House this year. In short, the anti-spam train is leaving the station. There is much to be done on the train and we want the whole community on board.

I am not going to argue that legislation will be a silver bullet. We need to fight spam on a number of fronts and the bill will be only one part of that fight. In addition to the bill, partnership with industry and the community on education and codes of practice will have a valuable role to play. I intend to do all I can to facilitate this and would welcome your thoughts on the matter.

Nor can New Zealand tackle the spam problem alone. Legislation will allow us to enter agreements with other countries to fight spam. International problems need international solutions and I see the facilitation of international agreements as a key reason for a legislative approach.

In addition to working with other countries we can learn from them as we develop the bill. As you will know, Australia has already enacted specific anti-spam legislation and I am hopeful that New Zealand will be able to benefit from their experience and that of other countries in designing and implementing our own legislation.

What I would like to do today is briefly give some background to the issue from a Government perspective, and then offer some comment on the wider Government policy objectives and issues as well as some specific issues raised in the Government’s discussion paper.

Objectives

Anti-spam legislation will be part of a multi-pronged approach aimed at reducing spam. Other measures such as industry self-regulation, education and awareness campaigns, and technical measures such as filtering are also important, while effective enforcement and international co-operation are also critical factors.

What legislation does is enable action to be taken against spammers in New Zealand, thereby preventing New Zealand being seen as a safe haven for spammers internationally, and it assists New Zealand’s efforts to deal with spam from overseas countries if we have our own house in order.

Already countries which have or are proposing anti-spam legislation are looking at bilateral and multilateral arrangements to deal with spam. When I was in Korea last December the Korean government expressed interest in an MOU with New Zealand. When I met with my British ministerial counterpart he expressed interest in working with New Zealand on spam and similar sentiments have been expressed by Australia.

But up until now none of that has been possible. New Zealand has no domestic legislative base from which to negotiate an international agreement. Worse than that it has no effective legal sanction against spammers operating from within our borders.

Unless we get that right New Zealand will get a reputation closer to Nigeria than Nirvana.

That is not the visions this Government has for New Zealand. Our vision is to the contrary - that New Zealand will be a world leader at using information and technology to realise our economic, social and cultural goals. To achieve this we must address spam.

One of the key roles for the Government outlined it's draft Digital Strategy, which I released earlier this month, is that of mitigating risk and creating a secure, reliable and well regulated environment so that there is public confidence in the use of ICT in New Zealand. Spam is clearly a threat in this area. The enactment of anti-spam legislation in 2005 is therefore one of the targets set out in the draft strategy.

With any new area of regulation, however, there are areas of tension with competing Government objectives, and anti-spam legislation is no different. For example, there is a tension between the objectives of regulating against the sending of unsolicited commercial emails in order to minimise the costs to business, and enabling businesses to use the Internet for legitimate marketing and promotional purposes without facing undue uncertainty or compliance costs. Despite some misreporting of recent statements, I am very confident that the Direct Marketing Association will work with the Government to take a responsible approach to the Bill.

There is a further tension between regulating against any type of communication and the right to freedom of expression in the Bill of Rights Act. These types of tensions mean that the Government has to carefully consider what is the right balance when introducing any new form of regulation.

Legislative Issues

The Discussion Paper has sought to canvass the key issues involved in designing anti-spam legislation and these will be the subject of this afternoon’s discussion. The Paper has largely taken a neutral view on these issues, preferring to merely note the various arguments rather than take a position. But I have made some of my own views clear.

I would now like to briefly cover off some of the issues raised in the paper.

The first issue is the types of media that might be covered by anti-spam legislation. The Government’s principle focus has been on electronic communications, particularly email, because this has been where the main problems have been. This is largely due to the minimal costs involving in sending large volumes of email.

However, as a Minister I get complaints relating to a wide range of promotional communications, hence the question around what should be targeted by any legislation. There is also, in my view, a need to anticipate possible future spamming trends. I note there both the US and Australia are considering legislative approaches to the issue of spyware. The government has no view on this and would be interested to hear your thoughts on the matter.

The second issue concerns who should be caught under any legislation? In other words who are the real villains behind spam that we want to target and should people who may unintentionally be a party to spamming be totally exempted? The intention here is for the legislation to be effective in its targeting and to recognise that there may be different levels of culpability or people who, while parties to spamming in one sense, are also victims.

The third issue is consent. I have signalled an initial preference for opt-in rather than opt-out. This is the approach taken in the Australian anti-spam legislation, and so there is a harmonisation benefit from New Zealand taking the same approach. Opt-in places the onus on the sender of messages to ensure that recipients have given their consent while opt-out has the effect of legitimising spam until a person opts out, which many people can be reluctant to do as it confirms their email address to the spammer. However I am concerned that if opt-in is provided for that it does not inadvertently catch legitimate email marketing or impose undue compliance costs. I am particularly interested in getting some feedback on what should constitute consent. I see clarity around this as one of the key legislative issues.

The fourth issue is enforcement. Without effective enforcement in New Zealand and cooperation with overseas enforcement agencies, legislation will have little impact on the spam problem. I therefore see legislation as only the first step on the part of the Government in dealing with this issue.

Next Steps

I would now like to make some general comments about the process from here. The closing date for making submissions on the Discussion Paper is 30 June. These may be made by email to spamsubmissions@med.govt.nz or to the IT and Telecommunications Policy Group at the Ministry of Economic Development.

It is my intention to then proceed with the development of a legislative policy which takes into account the submissions made on the Discussion Paper and the experience of other countries that have already developed anti-spam legislation. In this regard I would like to express my thanks to the Australian Government representatives who have generously offered us the benefit of their experience.

I have already stated that it is my hope that an anti-spam Bill can be introduced into Parliament by the end of this year. Following the introduction of the Bill it will be referred to Select Committee where there will be further opportunity to have a say on its design. It is my hope that there will be multi-party support for the Bill.

Conclusion

Thank you for your attendance at today’s workshop. I trust it will prove useful in helping you to work through the issues and produce submissions that are well reasoned and fully represent your concerns and what you would like to see as an outcome.

I am looking forward to working with you to put spam in the can.