High Court action against alleged spammer

The Department of Internal Affairs has issued a press release:

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.

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 reference to the lack of an unsubscribe facility comes on the heels of allegations that Telecom has contravened the Act for the same reason.

The DIA is seeking the maximum penalties – $200K for an individual, and $500K for a company. Hopefully, no spammer makes amounts in excess of these penalties (surely not??) – otherwise they’d still end up in the black!

It will be interesting to see how the claim is framed against Brendan Battles personally, and his company Image Marketing Group Limited. Unless Battles was sending emails in his own right, and not via Image Marketing, issues of the “corporate veil” arise. Such issues are common in commercial litigation. For example, liability under the Fair Trading Act 1986 can attach to company officers, even though they were acting under the veil of the company (see Personal Liability of Directors under the Fair Trading Act, PDF).

However, the anti-spam act contains a specific section covering “third party breaches” (accessory liability), and also includes sufficiently expansive language, to cast the net wide enough to enable personal liability to attach to company officers and employees.

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