A
$12,000 penalty for spamming was reduced to $250 on appeal. Inflammatory messages sent to some 440
members of an internet forum could have been disciplined by Internal Affairs
imposing a small fine for infringing the Unsolicited Electronic Messages Act
rather than mounting a District Court prosecution, the High Court ruled.
Zeljko Aksentijevic was prosecuted for
sending 2,230 unsolicited email messages to members of an internet forum
discussing electronic simulations of arcade games. He was interested in promoting his
application: CrazyTilt. A US-based member
of the forum complained to Internal Affairs identifying Mr Aksentijevic
operating out of Auckland’s North Shore as a member sending bulk unsolicited
emails to the forum. Mr Aksentijevic
said he was doing no more than highlighting the advantages of CrazyTilt and
criticising others who were selling bootleg copies of his app. He appealed a District Court ruling that this
behaviour amounted to spamming.
In the High Court, Justice Woodhouse
ruled unsolicited “promoting” or “marketing” prohibited by the Unsolicited
Electronic Messages Act does not require proof of a commercial or business
objective, or even an intention to make money.
The Act is designed to cut down on unwanted spam cluttering up
recipients in-trays. His Honour left
open the question of whether internet forum opt-in rules that have users
agreeing to receive emails from other forum members could amount to consent for
unsolicited emails, but said it did not apply in this case. The forum administrator had banned Mr
Aksentijevic following exchanges of increasingly vituperative emails between
members.
While ruling Mr Aksentijevic was in
breach of the Act, Justice Woodhouse said the $12,000 penalty imposed was
manifestly excessive. In previous cases
where spammers had sent in excess of one million spam emails, the fines imposed
have been in six figures: $100,000 or more.
Some 2,200 emails sent unsolicited by Mr Aksentijevic was minscule by
comparison.
For low level spamming, the Unsolicited
Electronic Messages Regulations sets out a procedure akin to breaches of parking
regulations. Internal Affairs issues an
infringement notice imposing a maximum fine for individuals of $200 per
event. While upholding Mr Aksentijevic’s
conviction under the Act, Justice Woodhouse reduced the fine to $250.
Aksentijevic
v. Internal Affairs – High Court (22.02.16)
16.034