The A$147,400 fine paid by Dodo Australia Pty Ltd ("Dodo") highlights the legal risks of telemarketing under Australian law. It also shows the teeth of the Do Not Call Register Act 2006 (Cth) ("Act") for calls made to home landlines and personal mobile phones which are on the Do Not Call Register.
The first offence fine paid by Dodo underlines what we said in Telemarketers must comply with the Do Not Call Register Act: "Marketing is one of the most regulated business functions and is affected by well over 20 different laws in Australia."
The short facts are that Dodo hired three offshore call centre to make telemarketing calls in late 2007 for Dodo. Dodo is a provider of telecommunications services. Calls were made to individuals, some of whom happened to be on the Do Not Call list. The Australian Communications and Media Authority ("ACMA") received 119 consumer complaints.
An investigation by the ACMA identified 67 calls in a three-month period to numbers which were on the national Do Not Call Register.
The ACMA issued an Infringement Notice under section 572B of the Telecommunications Act 1997 (Cth).
Dodo was forced to give to the ACMA a written and enforceable undertakings dated 18 August 2008.
In addition to the fine there will be administrative costs for Dodo to keep to its undertaking.
Dodo will incur the administrative burden of monitored compliance over the next three years. It also has to engage an independent consultant to check and report on various procedures for compliance.
The fine and the size of these costs could have been greatly reduced if Dodo had adopted a proper legally compliant process in the first place.
Non-compliance under the Act exposes to fines both those who make the calls (eg marketers or a call centre) and the clients like Dodo on whose behalf the calls are made.
The hints below apply to all telephone marketing by or for businesses, especially for telemarketers and call centres. They are drawn from some of the undertakings the ACMA has imposed on Dodo.
Firstly and most importantly, contractual obligations should be imposed for non-compliance with the Act. Secondly, there is a range of recommended practical follow-on tasks, all of which should be capable of being audited.
With the contract and related tasks activated, a business or its advisers can conduct a legal audit to proactively check that there is legal compliance with the Act.
A legal audit may be needed to confirm that:
Number list washing is undertaken to keep out those on the Do Not Call Register
The Do Not Call Register is checked to ensure numbers on it are not called
Records are kept of the script followed and all telephones numbers called
Such call records are retained for at least one year from the date of the call
Call staff are trained for compliance with the Act.
A complaints handling process is properly in operation
Representative of the call centre can be easily contacted to escalate issues
The ACMA confirms the law as it stands in its press release in the Dodo case
"Under the Do Not Call Register legislation individuals can list their Australian fixed line or mobile telephone numbers on the Do Not Call Register, provided those numbers are used mainly for private or domestic purposes, for example, calls to family and friends.
From 31 May 2007, it became illegal, in the absence of consent, for any non-exempt telemarketer in Australia and overseas to contact a number listed on the register."