NEW ZEALAND Law and Practice Contributed by: Shelley Slade-Gully, Tina Liu, Phil Taylor and Veronica Hartley, Tompkins Wake
Industry Codes Industry codes including the ASA Advertising Stand - ards Code and Children’s Advertising Code set stand - ards for advertising in New Zealand. While compliance with these codes is not a legal requirement, in practice there is a high level of compliance in New Zealand due to contractual requirements of many media outlets, and non-compliance with these standards indicates possible non-compliance with the requirements of the FTA. Profiling There is no specific regulation of profiling for the purpose of personalising or targeting advertising in New Zealand. However, in the course of profiling, the advertiser would need to comply with the Privacy Act requirement that collection of personal information must be for a lawful purpose and that, in the circum - stances (particularly in relation to children and young persons), the collection is fair and does not intrude unreasonably upon the personal affairs of the indi - vidual. For any profile created that contains personal informa - tion, the Privacy Act requires that the profiling agency takes reasonable steps to ensure the information is accurate, up to date, complete, relevant and not mis - leading. Sensitive Data The Privacy Act does not have an express “sensitive information” category. However, certain types of per - sonal information are treated as “sensitive” under the Privacy Act. For example, the Health Information Pri - vacy Code 2020 (issued under the Privacy Act) places additional privacy safeguards on the collection, use and disclosure of health information. Information collected from children and young peo - ple is also regulated under the Privacy Act. While the Privacy Act does not have specific provisions relating to the privacy rights of children and young persons, the Act highlights that particular considerations must be given to ensure that the manner of collection must be fair and not unreasonably intrude on the personal affairs of the child or young persons.
may be subject to specific legislation (eg, where con - tent constitutes financial advice, the Financial Markets Conduct Act 2013 will apply). Privacy Act 2020 The Privacy Act applies to the collection and use of personal information for personalised advertising on the same basis as described in 4.1 Use of Cookies . In particular, IPP 10 restricts use of data collected for one purpose (such as website analytics or account management) for an unrelated purpose such as tar - geted advertising and use for the latter purpose will generally require the individual’s consent. Organi - sations must also ensure that their data collection practices for advertising purposes comply with the transparency requirements of IPP 3 and the purpose- limitation requirement of IPP 1, as described in 4.1 Use of Cookies . The Unsolicited Electronic Messages Act 2007 (UEMA) The UEMA governs “commercial electronic messag - es” and applies to, among other things, marketing and promotional material sent through an electronic message (including SMS or email) for the promotion of goods or services. The UEMA provides that a person must not send, or cause to be sent, “an unsolicited commercial elec - tronic message that has a New Zealand link” with - out consent (as discussed further below). Consent is therefore required to send personalised or targeted commercial electronic messages. In addition to the requirement for consent, commer - cial electronic messages must identify the sender and The FTA provides broad protection to consumers from, among other things, misleading, deceptive and unfair conduct. While the FTA does not specifically regulate personalised or targeted advertising, the con - duct of advertisers must comply with the FTA. A per - sonalised advertisement may breach the FTA if, for example, it contains claims suggesting a product suits a consumer’s specific individual requirements which cannot be substantiated. have an unsubscribe facility. Fair Trading Act 1986 (FTA)
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