Finally, I have read the judgement from California about gay marriage. It may be prudent to post a comment from an earlier post, in response to a commenter, Madonna. I should note that I am not part of a conspiracy behind an ‘anti-gay industry’ or ‘“ex-gay” head cases’. I’ll also refrain from saying ‘You’re not bright,’ as you did to another Voxer, but I will begin with your own words, ‘Let me educate you.’ One proviso: I have read fewer Californian cases than, obviously, someone trained in an American law school. I have written based on what I have observed with Californian and American cases.
   It may also be instructive to read the below in conjunction with the previous post, also a response by me to a commenter who was considerably more civilized, in where I deal with Perez v. Lippold in more depth.

After having read the majority opinion, I remain unconvinced. While I agree the article is biased, I have to come to the same conclusion as Justice Baxter, principally for many of the reasons I outlined above.
   This may be time, now, to address Madonna’s points.
   First, Madonna, your attack on another commenter is unwarranted, and it’s a shame you would deny her her opinion from the outset without putting your reasoning first. It would not be unfair to dismiss anything that came afterward from you.
   I can equally attack you with your words:

No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.

Precedents do not govern, they persuade. And if you do look back at Californian decisions, regardless of whether the issues are as controversial or not, they show a gradual, progressive moving forward of the law, catching up to public opinion in many cases. I believe you are ignorant of this basic fact of how the law has worked in California and, indeed, your own country, based on this very general, sweeping proposition. Indeed, Perez itself shows this, and I find the lead judgement in particular to be very, very clever.
   These precedents which I have at least enquired into do show some persuasiveness but none of them get around the problem California has with the Governor’s vetoes. The fact that the ‘a man and a woman’ definition has been placed in really do not help supporters of gay marriage. So we are essentially stuck with the position that I stated in my comment to the Gay Curmudgeon.
   Effectively I believe that the law has been circumvented, and not very cleverly, the majority judges trying to bury the core issue with legalese.
   Your bill argument is unconvincing. If the Governor’s position is so dead wrong, then vote the man out. I come back to the basic idea: the judge’s role is to interpret the law. And a bill is not law.
   As are your arguments, from a legal standpoint, about polls (not really a consideration generally for courts, though they are slightly persuasive), while another state’s court ruling is based on the legislation of that state.
It is also irrelevant which party appointed the judges.
   The position I had in the above post, then, is the one I must take. Perez shows how a clever court gets around restrictive legislation. You obviously believe that the law is restrictive and unfair here and perhaps even offends public policy. I respect your view. Common law precedents are littered with cases where the court has got around such law. The court in this latest case has not done its job and I would say that if the majority had an agenda to accept marriage for same-sex couples, then it has done it in a clumsy way that opens the case for future attacks.
   Even if I were on your side totally—and I am not saying I am totally against you, either—I would advise you both to continue campaigning for your cause, because this judgement is weak when compared with others that have, let’s say, pushed the law in a certain direction.
   Your battle is far from over though given current trends in the California, you may yet win. However, I will guarantee you now that it won’t be on this decision.

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The following is a comment in response to the exchange from my earlier blog post on gay marriage in California. I believe it is important (for my own ego!) to address charges that I am prejudiced against gays or am a bigot. It is a pity that while I am open to seeing the other side of the argument in favour of gay marriage in California, as a heterosexual man I am already labelled (prejudged) as being incapable of that.
   I am going to Lawcrawler to see if I can find this controversial judgement and will give my thoughts on it later.

T. G. C., I am reading your extract short of seeing the full judgement, and I find it somewhat unconvincing.
   Let me address one point: the article I posted is an article I posted. Simple. I do find it somewhat offensive that you and Madonna would attribute its position to me when even I have not done so. Yes, you may feel it has a personal endorsement by its mere appearance here. In that case your opinion of me is forgiveable. I can understand that the article inflames certain passions. However, it is my opinion that if the article were fair, then the judges in this case do not understand their jobs.
   A bit about my history, so at least we can get on the same page here. I have a fairly good grasp of the law as I am qualified with an LL B. I live in a country that was an early pioneer in homosexual law reform and has a proud tradition of embracing lifestyles that traditionalists would be appalled at. I could probably even find you two gay couples who would attest to my views on the subject that I would say most gays (here) would believe are reasonable and fair.
   My posting an article is for promoting understanding, certainly my own, and certainly, too, to contrast the way your country handles legal positions against the way my one does.
   Let me take one of your highlighted points:

we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question

   Obviously without reading the statute I am less informed, but this is fairly true: in general, in most common law jurisprudence, courts to interpret laws in line with (state or federal) constitutions.
   Then, however, we have a conflict if the definition of marriage is codified, and this is perhaps the stem of the conflict more than anything.
   Traditionally, even when legislation is interpreted in the spirit of a constitutional document—a familiar argument here given the Treaty of Waitangi—it is not done by completely violating the wording of that legislation.
   To you and Madonna, it may be an issue of what the public wants, but if you have a Governor who keeps vetoing such bills, then I find it unconvincing that we rely on those bills in legal interpretation. In fact, this fact alone illustrates the law’s insufficiency at this present stage for those supporting gay marriage.
   The judicial task when faced with wanting to respect the will of the people and equal-rights doctrines in a constitution is to find third ways, clever exceptions that provide citizens with what they want without violating the legislation before them. This is a given in common law.
   While this means that gay marriage will take far longer to be recognized if this is the prevailing trend, law is something that takes decades to remould, but it should not be short-circuited.
   The law of negligence is a classic example in tort: probably most law students will recall this took decades before the landmark Donahue v. Stevenson case in 1928 and Lord Atkin’s classic judgement.
   Laws are slow, they are often reactive, but it is the system we are laboured with. An ideal world would be one without laws and with self-regulation between people acting with their complete free wills. I hold this to be an ideal and it matters, at the end of the day, little what definitions state about this word or that—but it does matter to me that while we have our current system, it is conducted fairly until the people decide on another system again.
   You bring up Perez v. Lippold. You are right that this is actually highly convincing and I thank you for reminding me of it. I do know a little about this case but there are some distinctions based on religion, the Fourteenth Amendment and constitutional interpretation, and these really helped the couple there. The respondent also presented some heavily biased opinion that the court saw through.
   There was indeed a law written in statute that barred the marriage of the couple in that case, one that was, admittedly, steadily eroded by the courts as it expanded the definition of marriage to increasingly more races.
   The court held (inter alia) that the sections in that legislation were too vague especially when it came to racial classifications—which was how ultimately it got around the interracial ban.
   You see, there was no legislating from the bench: the judge in Perez showed how lacking the legislation was, how it offended the basic tenets of the requirements of American law, and it was effectively a challenge to the legislature that: if you want to block us, revisit the law and redraft it if you dare. This I accept as this fight goes on all the time in a democracy.
   This is why I asked you and Madonna to find me the judgement, though since I haven’t heard back, I’ll have a trawl through Lawcrawler myself in a sec.
   Without clever methods of finding a way around fairly strictly worded statutes, I do believe from what little I know (yes, maybe I shall accept the ignorance charge) the judges crossed the line here.
   Contrary to your and Madonna’s biased views of me, I retain an open mind.

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The first time I read about Philip Glenister getting his driver off for speeding (35 mph in a 30 mph zone) I chuckled, as he adopted his Gene Hunt persona. The cop saw the actor and said, according to Glenister, ‘I’m terribly sorry about this sir, I’ll let you off this time if you don’t mind.’
   Glenister had apparently said to him prior, ‘Yes, I’m the one on the booze, not him. Go and catch some proper criminals.’
   Then I found the earliest article on the incident in the Daily Mail tabloid which contrasted this with others in the UK:

   Earlier this week it emerged that Sydney Duffy was fined for doing 35mph in a 30mph area when he tried to leave the road quickly as his wife had an epileptic fit. The 63-year-old has appealed against the fine from Cumbria police and will appear in court.
   And Stephanie Cornwall was issued with a £60 fine after rushing to hospital when her six year-old son Alfie was mauled by a dog. The mother, 40, from Leicestershire, was travelling at 37mph in a 30mph zone.

   One law for celebrities?
   The Met should have more sense than to fine people like Mr Duffy and Ms Cornwall.
   At least here the traffic cops allow for some speedometer error and that humans cannot be expected to constantly monitor their speed when traffic safety is at issue. If you kept staring at your speedo, you might get involved in an accident!
   It is worse here in New Zealand than it was 30 years ago but by and large, 5 mph is not something for the cops to get that upset about.
   I know there are exceptions but I am talking in a general sense. As we work in metric, 5 mph is roughly 8 km/h.
   The second incident probably would have been frowned on more today, less so 30 years ago: 7 mph goes past that 10 km/h leeway that some cops have as a rule of thumb.
   I tend to drive at the legal limit but realize that due to speedometer error I can be anywhere between 5 km/h over or under.
   The ‘Your speed is’ digital signs around some parts of New Zealand are helpful as a means of calibrating my own speedometer—so why do so many of them have their displays closed?
   They tend to show that my car’s 50 km/h is actually 47 km/h so I tend to go closer to 55 km/h on my speedo.
   The problem is that speeding here is governed by legislation that brings strict liability, which basically means “no excuses”.
   But I would think a Kiwi copper would have been able to judge in both cases somewhat better than his or her British counterpart.
   I am not sure if we would distinguish between celebrities and everyday folk. Any stories? I know of one incident told to me by an eyewitness (the passenger) where a rich driver was let off because of the car he drove, and the officers wound up going into macho mode to discuss the vehicle and neglected to issue a fine for excessive speeding. I cannot reveal more since I am not permitted to, and I would hope it is exceptional rather than commonplace.
   If a flash car could get me off a fine, I would have really opened up the Astons and Porsche 911 I have driven, but I prefer my clean licence (knock on wood) and was much more careful.

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Just got this in from Mike Corso at Cool Site of the Day.

A recent Brazilian YouTube sex scandal threatened to close down every WordPress blog around the world.
   Did you hear about it? It's already called “YouTube Gate”—apparently a spicy sex scene was posted on YouTube and someone discussed it on a WordPress-hosted blog.
   The problem is the Brazillian courts placed a ban on viewing the IP address of the entire WordPress website …
   … And that means potentially thousands of bloggers can't have their content shown in their country.
   Even worse, this isn't the first time a violation like this closed down an entire network of blogs.
   But the bottom line is this should be a wakeup call for those who rely on hosted blogs (like WordPress) to tweak their strategy and avoid getting their own blogs banned.
   The good news is the fix is simple … just host WordPress on your own server (rather than hosting it on the WordPress site).
   Getting WordPress installed on your own site is now a snap … just take advantage of John Saya's FREE WordPress autoinstaller.

http://www.cnotes.com/r/wordpress.html

Any questions, shoot me an e-mail.

Mike Corso
Cool Site of the Day

   This is a bit disturbing. Global Voices has more info. One of the quotations indicates a million Brazilian bloggers will be affected.
   I am not sure if a Brazilian judgement should have an effect on blogs like this, penalizing those in Brazil who are using wordpress.com. Those who didn’t feature the home-made porn on their blogs—as in the overwhelming majority of Wordpress users—should not pay the price for the handful that did. (And surely non-Wordpress blogs are affected, too?)
   Surely a simple deletion of the offending URLs would suffice?
   And this desire to post someone’s home sex video on to their own blogs—well, it ain’t my scene. Stick it on to YouPorn and let the perverts all go to the same place, and keep it off the blogosphere!

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I went to deposit, as I often do, a US dollar cheque into a New Zealand dollar account.
   The nice lady, Bev, tells me that there is now a $5 fee for depositing a foreign cheque.
   ANZ is totally f***ed up if it believes it can do this.
   I already have spoken to Lynne Russell at the TSB and I’ll be opening my account there at the end of March. It seems TSB is one of the few banks left in the country that understand what banking means.
   To Sir John Anderson and the other assholes making these decisions at the ANZ: when I deposit money with you, it is not a privilege for me. It is a privilege for you. I am loaning you money.
   For that, I expect you to pay me interest.
   You do not ask me for money.
   Why do you think I left the National Bank when Sir Spencer Russell retired? Because the last of the old guard went and all I saw were hot-shot assholes putting up bank charges across the board.
   You were there, Sir John. I know you are a nice guy in the regular scheme of things but why do you have to be the man at the top of banks that make these ridiculous plays?
   Dudes, you don’t realize that despite consolidation, you still ain’t the only game in town, though there should be more competition in banking.
   Banking management is, on the whole, incompetent in this country, though I understand we are still streets ahead of the UK. We certainly are when it comes to service, though in my experience the Swedes are well ahead again.
   You can tell when the Cheques Act 1993 needed to be drafted up because the banks were too incompetent to operate within the law up till that point. We have a perfectly functioning Bills of Exchange Act 1908 that covers cheques, but no—the banks were too confused about it.
   I still operate as though the 1993 act did not exist and mark my cheques based on the earlier act, which is still on the books.
   Most banks have refrained from charging me fees but they cannot do much about these head-office rules, so I will be withdrawing my deposits at, I mean, my loan to, the ANZ Bank and placing it with a New Zealand-owned operation that seems to understand banking and finance better.
   I’d encourage fellow New Zealanders to do the same. There is nothing morally acceptable about these bank fees, especially when it comes to deposits.
   When you borrow money from the bank, you pay them interest. When you lend money to the bank—which is technically what happens when you make a deposit—they should pay you. Even if they didn’t pay you and left it at a zero-sum game, that is still fine, but only just.
   Someone at ANZ forgot what banking is all about.

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[Cross-posted] I didn’t do as much witness work for my legal clients during 2005–6 and I was interested to see from a former client a letter from a large New Zealand law firm’s partner. I won’t reveal any specific information, of course, but let’s say it’s from a firm I did have some dealings against in the 1990s and I considered their statement of defence pretty amateur. I have considered their marketing to be very amateur, too—all style and no substance.
   Or perhaps their brand or marketing consultant actually did a perfect job—they expressed the firm honestly and accurately.
   The letter, with all the Our refs and jargon, lacks a salutation. There is no Dear or even an Attention: it launches straight in to the correspondence.
   This may be very nice for text messaging but it has no place in what is considered acceptable commercial correspondence.
   Perhaps once texting, or some evolution of it, becomes the dominant form of communication—which places us roughly between grunting and Morse code—then business correspondence may evolve toward the demise of the salutation.
   Until then, this merely illustrates the arrogance of the legal profession and how it has fallen even further out of step with its clientèle.
   Lawyers need to remember they represent certain parties and that those parties—the ones that pay their bills—have brands that need to be protected, not destroyed through callousness.
   The effects on culture are wide-reaching. Imagine singing the song ‘Dear John’ without the words Dear John. It kind of sucks with the lyric-free bits in the verses.
   How about answering a phone without a ‘Hello’?
   When I relayed this to one regular client, a practising attorney who is around my age, he was surprised. He has received such letters, too, but he agrees with me on this topic.
   There is what some people call a simplified letter, where there may be no salutation and the words Attention: Dispatch Department (for instance) may take its place. These are acceptable—just—when the recipient is unlikely to be known by the writer, but I have always adopted a Ladies and Gentlemen in such cases.
   I realize that the niceties of I remain or even Your loyal and humble servant have disappeared in New Zealand but this development of the missing salutation is worrisome.
   At best it is disrespectful to the recipient, which may be what the law firm wanted to convey—but disrespecting others is merely a sign of an absence of self-respect, showing that the firm itself is without merit.
   Yet the writer of this letter has not forgotten his valediction—I imagine he has retained it because that way he can put his own name down the bottom and see it in print.
   After all, with no salutation, surely there is no need for a valediction? My most casual emails, where I am firing off an internal memo or a quick response to some people, do lack both. I simply end the text with an em dash and my initials and I encourage some members of my team to do the same.
   Commerce does not function with people acting selfishly. It only works with mutual respect—and that includes people who may disagree with one another.
   So, for all those who have forgotten the components of an acceptable letter in modern business practice, here is a link. It is not geared to a general audience, nor do I agree with all of it, but following its components will certainly present a letter which hide how years of law school and legal practice have failed various members of the profession.

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I am morally against bank fees, and the ANZ Bank has usually been very good at making sure that I am not charged them.
   However, since late last year, despite protests, they haven’t been able to rid me of a $5 per month charge on an account I have held with the bank since the 1990s.
   So, it’s time to leave.
   I understand that the Taranaki Savings Bank has a no-fee policy for balances over $5,000, and it may be time to go patriotic and support a non-foreign-owned place.
   The problem is: there is a single branch out on Lambton Quay here in Wellington. I have enquired before about how deposits are made but if there are Voxers in New Zealand out there banking with TSB, I’d like to learn how you’ve found the process in practice.
   I also have a US dollar-only account, which TSB told me I could have. It’s also fee-free, which beats the $20 per month charge ANZ makes. So how is TSB when it comes to crediting US dollar cheques for a US dollar account?
   ANZ needs to realize it needs to keep a promise. It said it would fix things. It said that with the demise of the old type of account I had, there would be no difference. On both occasions the bank lied.
   I can afford the $5 but it’s the principle. They are making money off my money. In essence, they are borrowing money from me.
   If I borrow from them, they charge me interest.
   If they borrow from me, I should expect at least that I am not penalized for my generosity.
   This is how banks work.
   Of course, with even banking lawyers fuzzy on their understanding of such fundamental laws as the Bills of Exchange Act 1908, I am not surprised that banks themselves operate on questionable advice.
   They have suckered New Zealanders into expecting that fees are normal. Kiwis, they are not normal. They are actually immoral.
   I don’t think you will find any banker who went through the traditional training who will agree that bank charges make sense.
   Why do you think there are seniors’ packages that are fee-free? Because the seniors remember what banking is really like. Treat them like someone not old enough to have a bus pass and a pension, then you can watch Grey Power revolt.
   TSB customers, give me a shout if you have some advice on how your bank is in real life.
   I want my bank to treat me like an OAP.

N.B.: This does not affect Lucire LLC, only Jack Yan & Associates. It will take me a few weeks to sort this out due to busy-ness, so if clients are reading this, don’t change your payment method just yet!—JY

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At least the British don’t pull out feeding tubes.
   In November 2007, it was reported that a 23-year-old woman, Amy Pickard, who had gone into a coma after a drug overdose (sounds familiar?) woke up thanks to the use of a sleeping pill. The pill, Zolpidem, has various side effects for comatose patients. Ms Pickard has even managed to stand.
   This link comes from the Life for Lauren website and I hope that the courts recognize this, along with the testimony of Kate Adamson, who was once diagnosed as being in a persistent vegetative state. Today, Ms Adamson goes around the US as a motivational speaker.
   Ms Adamson, whom some of you may remember appearing on the news around the time of the Terri Schiavo case, was paralysed from the forehead down. She was operated on with insufficient anæsthetic and surgeons did not care, because they deemed her a vegetable and unable to feel. She felt everything they did.
   She was also starved for eight days after her feeding tube was taken out and recalls it was one of the most painful and inhumane experiences a person can have.
   It was only put back in because her husband, a lawyer who had given up his practice to care for her, threatened to sue everyone’s pants off.
   Her left side is not fully able but Ms Adamson is arguably more productive than many of us with what society deems healthy bodies.
   Lauren Richardson is in a better state than Kate Adamson was, able to respond to her father and her dog, according to a video that has since been removed from YouTube. Yet the courts are so far supporting her mother, who believes her daughter’s feeding tube should be removed.
   Edith Towers, Richardson’s mother, says her daughter told her and another relative that she would not want to live this way, after watching the Terri Schiavo case on television.
   Although this evidence is hearsay—and weak at that—the court in Delaware is giving Towers considerable authority over Richardson’s rights. Her father is fighting that judgement.
   This blog also revealed in comments, which I repeat to save readers from searching, additional facts:

You can go to Lauren’s MySpace page and look to see where she states herself that she got along better with her father then with her mother. However, the verdict was based solely on her mother and her mother’s uncle stating that she had said she did not want to live “like that”.
   Not to mention, if Lauren did say those things in 2005 as told in court, she was on drugs and drinking when [she] made them, and she was not a mother. At the same time she allegedly made these statements one of the two witnesses had just gotten out of a mental institution and one was on drugs himself. These do not seem like they should be admissible to me.
   The week that Lauren “accidentally” overdosed, she had been hiding from her mother who was trying to force her to have an abortion. She had been clean for ten months! Her stuff was packed because that weekend she was going to move in with her dad, because she had asked him to help her with the baby.
   Several doctors have requested to see Lauren and try different treatments. Her mother has refused all of them. Her doctor, who is not a neurologist, told the family that she would not wake up, she would not move her body, that she would not respond to pain, that she would not breathe on her own again, that would not respond to people, that she would not show emotion. She does all of these things. She also can swallow and doctors have said with enough therapy she could eat on her own again. If she had gotten that therapy and could feed herself would we then hold her arms down so she cannot eat?

   Towers has even prevented Richardson from seeing her own daughter, to whom she gave birth last year. What sort of mother is that?
   I would have thought news like Amy Pickard’s would be celebrated. There is so much out there that says that Lauren Richardson is less “vegetative” than these other folks—who got out of far worse states than she finds herself in now.
   The courts do listen to “experts” but they also need to look at the strength of the testimony and subject it to the same rules as they might in criminal cases. We are talking about a human life here, and we can’t kill someone based on hearsay.

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I love it. Dr Jay Parkinson of Brooklyn, NY, has gone online with his practice:

http://www.inter-actions.biz/blog/2007/10/is_there_a_doctor_in_the_house.html

That means you can reach him via electronic means and he will do diagnoses accordingly, even after hours for emergencies.
   Now, I would love to see lawyers do this. Even an e-court. Parties or their attorneys feed in their evidence to a site with limited fields and a judge decides. No emotion, no BS. The decision comes swiftly. Any mitigating factors can be fed in, but lawyers would be encouraged to write everything briefly. They would be unable to hide extra charges. And if they think anything’s been missed, then the process could go to appeal before a live court.
   It would lower the price of getting justice because the system would no longer need to support a live District Court, and appeals would be at the current price of the original claim. It would also make things faster.
   Best of all, the legal profession, branded as shysters even in Shakespeare’s day, would appear more transparent. It would start going up the ladder in people’s minds.
   I would love to see a country like Singapore, or even New Zealand, give this sort of thing a shot. Singapore prides itself on e-governmental processes and this would be an ultimate test. New Zealand’s system is far too entrenched but I’d love to see a party adopt this idea.
   It’s far too radical for Labour, and certainly would be gobbledegook for National.
   Greens? United Future? The Alliance?

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[Cross-posted] There have been a lot of domestic businesses emailing me of late out of fear that, if they sent me more bulk emails, they would violate the new anti-spam legislation that comes into force in New Zealand tomorrow.
   This has been good in the case of NZ Post, to whom I never gave permission to spam me. It has also allowed me to get off another list that I sent a remove request to some time ago that was not honoured.
   But the majority are from businesses that need to communicate with me as a member of the press. Why they need to verify that I wish to continue on their mailing lists seems a waste of time.
   Of course journalists need to continue receiving press releases, and the Unsolicited Electronic Messages Bill, in its final draft form, provides an exception for them.
   The interpretation part of any legislation is always interesting as you an infer some of Parliament’s intent there. ‘Consented to receiving’ means, inter alia:

consent that can reasonably be inferred from—
   (A) the conduct and the business and other relationships of the persons concerned; and
   (B) any other circumstances specified in the regulations;

It goes on to provide other interpretations of consent, e.g. when an email address has been ‘conspicuously published by a person in a business or official capacity; and’ there is nothing to suggest that the person does not want to be spammed; and:

   (C) the message sent to that address is relevant to the business, role, functions, or duties of the person in a business or official capacity; but
(b) does not include the circumstances specified in the regulations from which consent cannot be inferred[.]

   For those businesses (like ours) that have mailing lists that only includes people that have specifically and expressly requested to be on it, then this Act presents no problems. The only ones where we have compiled addresses are press mailings, covered by the definition of consent.
   It shows that by respecting laws over a decade before they are drafted, we are sitting pretty.
   In fact, I am not sure how this law might apply to us, with the only problem being false addresses that are fed in to our request forms. It does mean that we need to keep more records, which is a burden on honest businesses.
   We, and the many emailing us, may actually have a final out, with the following not qualifying as unsolicited commercial email (UCE):

provides notification of factual information about a subscription, membership, account, loan, or similar relationship involving the ongoing purchase or use by the recipient of goods or services offered by the person who authorised the sending of the message, or the recipient’s ongoing subscription, membership, account, loan, or similar relationship;

which largely covers notices that we send out.
   I wanted an anti-spam law here in New Zealand because I was getting unsolicited junk email from the ACT Party over the course of maybe one year. But when one considers the bigger picture, the majority of spam in New Zealand is not from New Zealanders. The majority is from American, Russian and eastern European countries, often routing through Far East servers. And this act does nothing to prevent them.
   In that frustration, I foresee a rush to judgement by regular people now panicked by all these extra-cautious requests from companies. What if they had signed up to a list and forgot about it? Does this Act now arm them, making them into amateur Perry Masons who believe that they have one up on legitimate, honest companies? Honest people will be pursued.
   In such a case, is it fair to shift the onus of proof on to the sender, when the sender might not have kept records prior to the Act coming in to force of the original subscribe request?
   I believe honest companies can discharge the onus of proof by providing evidence of how their emailing lists are compiled. In our case, we send an initial email, outlining that someone had signed up with that address. We ask the recipient to notify us immediately in case of fraud. Since 2006, we send out two emails to confirm the fact (one acknowledgement, one confirmation) with clear removal and feedback links.
   Sorry, Kiwis, tomorrow will not be a spam-free day. We will receive as many spams about penis enlargements, drugs and porn as we did today. The same SOBs will email us about wins in lotteries we never entered, or ask if we can transfer funds for some ousted African dictator. It targets the wrong people, but then, Parliament cannot exactly enact laws that go outside our borders—and that is where spam mostly comes from.

Disclaimer: don’t rely just on me. Seek legal advice.

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