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December 17, 2013

Do Not Call Register review

The Government has issued a discussion paper reviewing the optimal period of registration on the Do Not Call Register to opt out of receiving most unsolicited telemarketing calls and marketing faxes.

When the Register was first established, registrations were valid for three years from registration. Since 2007, the registration period has been extended on three occasions, and is now set at eight years.

Public comment is sought on four options:
1.Reduce the period of registration to three years
2.Retain the current eight year registration period
3.Extend the registration period to indefinite
4.Remove the need to register

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Posted 17th December 2013 by David Jacobson in Do Not Call Register, Marketing, Privacy

July 9, 2013

Refer-a-friend marketing: legal issues

Referrals (where one person recommends a business to another person) are recognised as an effective form of marketing.

But what about when a person gives a friend's contact details to a business?

The business needs to consider whether it can use personal information about the friend without their consent.

If the person is on the Do Not Call Register it cannot call them.

It also needs to ensure that it does not contact the friend electronically (such as by email or SMS) as that would constitute spam.

ACMA says that one of the most common types of complaint it deals with comes from people who've received a marketing message to their personal email address from a business they've never heard of.

An unsolicited electronic message by a business is spam.

A business must not send an electronic message to a person unless they have consent.

What if you want the friend to make a referral from your website direct to their friend by using a plugin like ShareThis?

In 2012 ACMA issued a warning to McDonalds over a "refer a Friend" campaign that did not have the recipient's consent. And the emails did not contain an unsubscribe facility.

McDonalds had a “Send to Friend” facility on its Happy Meal website which encouraged visitors to email links to promotional games on the website to their friends.

ACMA decided that McDonald’s had caused those messages to be sent by providing the facility, in circumstances where ACMA was not satisfied that the recipients of those messages had consented to receiving the messages.

In ACMA's opinion

  • Including your customer's email address as the sending address for your message doesn't absolve you of responsibility.
  • Telling your customer that they should only send a message to someone they think would want it doesn't prove that the recipient consented.
  • The fact that two people know one another or have each other's email address does not mean the recipient would reasonably expect to receive marketing emails about your business.

If you run refer-a-friend campaigns then you need to review them for Spam Act, Privacy Act and Do Not Call Register Act compliance.

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Posted 9th July 2013 by admin in Do Not Call Register, Marketing, Privacy, Web/Tech

April 22, 2013

Do Not Call registration period extended

The Do Not Call Register (Duration of Registration) Amendment Specification 2013 (No. 1) extends the period for domestic phone numbers registered on the Do Not Call Register to eight years.

All numbers currently registered will automatically be extended from the existing six years to eight years.

The register is maintained by ACMA

Background

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Posted 22nd April 2013 by David Jacobson in Do Not Call Register, Marketing

January 18, 2013

Privacy Act amendments: the effect on current exemptions

The Privacy Act amendments will take effect on 12 March 2014.

How will current exemptions be affected?

Small business exemption
Currently small businesses (with a turnover of $3 million or less) are exempt unless they are:

  • a health service provider
  • a trader in personal information
  • related to a larger business
  • a contractor with Commonwealth
  • a reporting entity under the AML/CTF Act
  • an operator of a residential tenancy database.

A small business can opt in.

The only change to that exemption is that small businesses will be bound by the CR (credit reporting) Code if they elect to participate in the credit reporting system.

Credit providers and credit reporting agencies that are small businesses will be required to comply with the Privacy Act.

Private Sector Employee records
Employee records directly related to a current or former employment relationship will continue to be exempt. But employment agencies and information about prospective employees will continue to be covered by the Privacy Act.

Spam Act and Do Not Call Register Act

APP 7.8 (direct marketing) provides that APP 7 will not apply if the Spam Act or the Do Not Call Register Act apply. These Acts contain specific provisions regarding a particular type of direct marketing or direct marketing by a particular technology.

But if these Acts do not apply then APP 7 will apply to organisations involved in direct marketing relating to electronic messages and other acts and practices not covered by these Acts.

The Spam Act generally applies to any unsolicited commercial electronic message (“spam”) with an Australian link.

The Privacy Act will apply to emails and other non-commercial electronic messages not covered by the Spam Act when it involves the use of “personal information‟.

The amendments could also therefore apply to non-message based online marketing including Twitter and pop up ads.

We will be discussing the effect of the amendments on financial service providers at our February seminars.

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Posted 18th January 2013 by David Jacobson in Do Not Call Register, Marketing, Privacy

March 22, 2012

Do Not Call registrations to be extended

The Do Not Call Register (Duration of Registration) Specification (No. 1) 2010 (Amendment No. 1 of 2012) extends the current registration period for domestic telephone numbers from 5 years to 6 years.

The Register commenced on 31 May 2007 and the Do Not Call Register Act initially prescribed numbers entered on the Register were to remain in force for three years. The term was later changed to 5 years and numbers will begin to automatically fall off the Register from 31 May 2012 if they are not re-registered.

The Government is currently examining options for maintaining the accuracy of the Register without the need for periodic re-registration. The extension of the registration period by an additional twelve months will allow further time for a detailed consideration of these options.

The Specification extends the period for which numbers on the Register remain in force to six years, and operates to:

  • automatically extend the registration period for numbers on the Register at the time the Specification commences so that their registration remains in force for six years from the date of their registration; and
  • provide that numbers registered subsequent to the commencement of the Specification have a registration period of six years.

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Posted 22nd March 2012 by David Jacobson in Do Not Call Register, Marketing

October 12, 2011

Telemarketing outsourcing agreements

If you enter into an agreement with another party to make calls for your business, you must ensure that they are aware of their responsibility to comply with the Do Not Call Register Act (DNCR Act).

Under section 12 of the DNCR Act, you must include an express requirement in the agreement that they comply with the DNCR Act.

You should also be aware that under section 139 of the Telecommunications Act 1997, you must include an express requirement in your telemarketing or fax marketing agreements that the other party must comply with Part 6 of that Act, which concerns industry codes and standards.

The current relevant industry standard is the Telecommunications (Do Not Call Register) Telemarketing and Research Calls) Industry Standard 2007.

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Posted 12th October 2011 by David Jacobson in Do Not Call Register, Marketing

September 13, 2011

Do Not Call Register Act breach penalty

In Australian Communications and Media Authority v FHT Travel Pty Ltd [2011] FCA 550 the Federal Court found that FHT Travel Pty Limited (FHT Travel) and its sole director Yvonne Earnshaw breached the Do Not Call Register Act 2006 by making, or causing to be made, more than 12,000 marketing calls in less than a month to people who had placed their telephone numbers on the Do Not Call Register.

The Court ordered FHT Travel to pay a civil penalty of $120,000 to reflect the serious nature of the offence. Injunctions were granted restraining both FHT Travel and Ms Earnshaw from being engaged in any business which relies upon the regular use of telemarketing calls, without first advising ACMA in writing of its or her intention to do so, and providing such information concerning that involvement as ACMA may reasonably require, for a period of five years.

No penalty was imposed on its sole director as she was bankrupt.

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Posted 13th September 2011 by David Jacobson in Do Not Call Register, Marketing

October 28, 2010

Fax marketing industry standard

The Australian Communications and Media Authority is developing a national standard for the fax marketing industry and has released a second discussion paper with a draft standard.

It is expected the standard will be determined in early 2011.

The standard will:

  • restrict the hours and/or days during which marketing faxes may be sent, or attempted to be sent, to an Australian number
  • require that a marketing fax sent to an Australian number must contain specified information about the person who authorised the sending of the fax
  • restrict the total number of marketing faxes sent, or attempted to be sent, by the relevant participant during a particular period to a particular Australian number
  • require that, if a marketing fax sent to an Australian number is authorised by a particular person (the authorising person), the fax must contain information about how the recipient of the fax may send a message to the effect that the recipient does not want to receive any marketing faxes authorised by the authorising person.

Interested parties are invited to comment.

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Posted 28th October 2010 by David Jacobson in Do Not Call Register, Marketing

May 27, 2010

Do Not Call Register Legislation Amendment Act 2010

The Do Not Call Register Legislation Amendment Act 2010 was assented to on 18 May and is now available on Comlaw here. The changes are expected to come into effect on 30 May 2010.

The Act allows the registration of emergency service and government phone numbers and all Australian fax numbers on the Do Not Call Register but not business phone numbers.

Sending unsolicited marketing faxes to an Australian number which is registered on the Do Not Call Register will be prohibited.

The Act also extends the current registration period for domestic numbers from 3 years with an arrangement that enables the Minister to determine the appropriate registration period, probably 5 years.

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Posted 27th May 2010 by David Jacobson in Do Not Call Register, Marketing

May 2, 2010

Do Not Call Register business extension dropped

The Minister for Broadband, Communications and the Digital Economy Senator Stephen Conroy has announced the Government will not proceed with the proposal to extend the Do Not Call Register to include business numbers.

The provisions in the current Bill to allow the registration of emergency service, fax, other non-business and government numbers on the Register will remain.

The Bill will also be amended to replace the current registration period for domestic numbers from 3 years with an arrangement that enables the Minister to determine the appropriate registration period, probably 5 years.

Fact Sheet

UPDATE: Amended Bill passed 13 May 2010.

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Posted 2nd May 2010 by David Jacobson in Do Not Call Register
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