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When is consent not consent?

By Paul Lochore FREINZ

In the real estate industry it’s easy to become complacent about the way we obtain consent from customers to be included in our databases to receive our marketing material. And it’s easy to forget just how important it is to obtain all the necessary information to gain consent – and to document and file this permission in our records.

Visitors and prospective buyers to our open homes are of course the main ways in which we are able to gain consents and details from people to be added to our marketing databases.

Recently Lochore’s received a visit from two members of the very helpful team from the Department of Internal Affairs’ Electronic Messaging Compliance Unit who gave an informative talk to all our staff about the requirements of consent in this area.

The Unsolicited Electronic Messages Act became law in September 2007. The Act prohibits the sending of unsolicited commercial electronic messages with a NZ link. It also requires all commercial electronic messages to include information about who authorised the message and to provide a functioning unsubscribe facility. It also prohibits address-harvesting for the purpose of unsolicited commercial messages.

Basically, the Act provides a framework to help people to conduct their electronic messaging in a compliant manner. In other words, it shows us what best practice looks like in this area.

What constitutes an electronic message? 

It’s information that promotes our services, our business or an investment opportunity, i.e. properties for sale or for rent. It may even contain a link directing the recipient to a message or website promoting our services.

Interestingly, telephone calls or voice-over IP is exempt from this legislation, which just covers emails, texting, instant messaging (IM) or faxing.

We don’t want to frustrate our customers or do anything that might adversely affect our reputation. In fact it’s in no one’s interests to spam people. I myself become irate if I think I’m being spammed.

So, what is consent anyway?

The Act defines consent as someone agreeing to receive electronic messages by signing a form or ticking a website box or giving verbal agreement – hence the need for keeping good in-house documentation of such agreements and noting names and dates in a spreadsheet to show who has opted in. We were relieved to hear that consent can also be inferred or assumed if someone has given you their email address or their business card, or if there’s an ongoing business relationship or the material being sent is relevant to the recipient or to their business.

Making it easy for recipients to unsubscribe

Again, this seems a no-brainer. Make this option as conspicuous and functional as possible and not cost the recipient anything to opt out.

Having said all that, we hope our marketing material is relevant and useful to those people who have ticked the box to receive it from us. We’re open to feedback. And yes, we do provide a clear ‘unsubscribe’ option.

It’s the law.

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