The Australian Communications and Media Authority (ACMA) signed a contract on 1 February 2007 with Service Stream Solutions Pty Ltd to develop and operate the Do Not Call Register. This follows passage of the Do Not Call Register Act 2006 (Cth) in mid-2006 to commence steps to establish the Register. The Register is expected to be operational by May 2007 at which time phone account-holders will be able to register their home numbers to reduce telemarketing calls.
Under the Act unsolicited calls cannot be made to a number on the Do Not Call Register. Organisations which use telemarketing whether with call centres in Australia or abroad should introduce new procedures and processes to ensure compliance with the Act and the Telecommunications Act 1997 (Cth). Telemarketers will be able to obtain a “washed” list of numbers by delivering them to the ACMA and paying a fee yet to be determined.
1. What telemarketing is affected?
Under section 5 of the Act this includes organisations which use telemarketing:
“(e) to offer to supply goods or services; or
(f) to advertise or promote goods or services; or
(g) to advertise or promote a supplier, or prospective supplier, of goods or services; or
(h) to offer to supply land or an interest in land; or
(i) to advertise or promote land or an interest in land; or
(j) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
(k) to offer to provide a business opportunity or investment opportunity; or
(l) to advertise or promote a business opportunity or investment opportunity; or
(m) to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or
(n) to solicit donations; … “.
2. What are the consequences of breach?
Part 2 of the Act is headed “Rules about making telemarketing calls”. When it comes into operation on proclamation, two remedies will be available to the ACMA on application to the Federal Court or the Federal Magistrates Court. They are an injunction and a range of fines. The fines range from A$1,100 to A$1.1 million depending on the circumstances of the breach, in particular whether breach is by an individual or a corporation, a single contravention or multiple contravention on the same day, a first offence or subsequent offence.
3. Who is excluded
Mirroring similar exclusions in privacy and spam law, Schedule 1 of the Act sets out a basis for exclusion of various people or organisations from application of the Act who make a “designated telemarketing call”. They include government bodies, religious organisations, charities, political parties and educational institutions.
4. Can people opt into getting a telemarketing call?
The short answer is yes, but for a limited time. Like the Spam Act 2003 (Cth) a regime of obtaining consent is applied. The consent should be from the telephone account-holder or nominee appointed in writing. This is set out in Schedule 2 of the Act. Unlike the Spam Act a short window is provided for that consent of three months, after which the consent is taken to be withdrawn.
5. What’s the position in other common law countries?
Introduction of the Register puts Australia in step with the United States and the United Kingdom which have similar registers. Australia’s approach is closer to that of the US. New Zealand does not have a register and Canada is in the process of introducing one.
6. What other legal compliance obligations apply to telemarketers?
There is simply not enough space here to begin to answer this question beyond mentioning that trade practices, spam and privacy law are all relevant. On request by email we can provide a short marketing compliance checklist in a table format.
Marketing is one of the most regulated business functions and is affected by well over 20 different laws in Australia.
This article is a simplified overview of the impact of the Do Not Call Register Act 2006 (Cth). Law is typically written to say what cannot be done. Specific legal advice helps determine what can be done within the confines of law and suiting a particular organisation’s aims, practices and process. There is considerable detail in the Act requiring such specific legal advice and a need to develop compliance methodology particularly for:
- call centres and telemarketers,
- those who contract them, and
- those who use telemarketing.
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