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codes and studies
This page considers industry codes that are intended to
the complement Do Not Call registry schemes. It also highlights
studies of the Australian regime.
It covers -
introduction
Do Not Call regimes are typically strongly influenced
by pollsters (operating on behalf of political parties,
governments and other interests) and marketers. Those
regimes accordingly claim to represent an "appropriate
balance", a balance that some consumers argue is
biased to the caller.
Recognition that industry organisations have a lack of
commitment - or merely incapacity - to address consumer
concerns through meaningful codes of practice outside
Do Not Call registers has led governments to develop discrete
codes of practice regarding the conduct of telemarketing
and polling.
Such codes have been opposed by some marketers as restrictive,
impractical, contrary to the wishes or interests of consumers,
and an unusual exercise of government power. They are
however consistent with the history of consumer
protection highlighted elsewhere on this site, with for
example restrictions on what can be advertised, the form
of advertisements and the timing of advertisements by
broadcasters.
In principle there is little basis for a 'telephone exceptionalism'
that claims phone calls deserve less protection.
Australia
On 21 December 2006 (timed to avoid comprehensive community
examination?) the Australian Communications & Media
Authority (ACMA) released a draft industry Standard "establishing
a minimum set of requirements for making telemarketing
and research calls".
That code of practice - formally the Telecommunications
(Do Not Call Register) (Telemarketing and Research Calls)
Industry Standard 2006 - is intended to complement
the Do Not Call Register discussed in the preceding page
of this note. It is being developed by ACMA in "consultation
with the states and territories, industry, consumer groups
and the wider community", ie in accord with the usual
arrangements for telecommunications industry and marketing
industry codes of practice regarding privacy, dispute
resolution, consumer protection and other matters.
It came into effect at the same time as the Do Not Call
Register on 31 May 2007.
The code establishes minimum standards in four areas -
- restricting
the hours/days during which telemarketing and research
calls can be made
- requiring
the caller to provide specific information
- providing
for termination of calls, and
- requiring
callers to enable calling line identification.
It
applies to -
- all
telemarketing calls made to an Australian number to
"offer, advertise or promote goods, services, interests
in land, business opportunities or investments, or to
solicit donations"
- all
research calls to conduct opinion polling and to carry
out standard questionnaire-based research, and
- calls
made for the above purposes by public interest entities
(such as charities, registered political parties, and
religious organisations) who are exempt from the general
prohibition on calling numbers listed on the Do Not
Call Register when making specific types of telemarketing
calls.
The
Standard is described by ACMA as providing "clear
and enforceable rules". It provides that a caller must
not make or attempt to make a -
- telemarketing
call on a weekday before 9:00 am or after 8:00 pm
- research
call on a weekday before 9:00 am or after 8:30 pm
- telemarketing
or research call on a Saturday before 9:00 am or after
5:00 pm
- telemarketing
or research call on a Sunday or a public holiday.
People
whose day of worship is Saturday, rather than Sunday,
will continued to be bothered by "telepests":
a more equitable regime would impose a standard restriction
across the weekend. As highlighted in the preceding page
of this note, the standard was eroded even prior to implementation
with ACMA announcing on 30 May that it had
varied
the Telecommunications (Do Not Call Register) (Telemarketing
and Research Calls) Industry Standard 2007 to allow
research calls to be made on Sundays.
Under the revised industry standard, which commences
on 31 May with the Do Not Call Register Scheme, a research
caller must not make or attempt to make a research call
on a Sunday before 9.00 am or after 5.00 pm.
Telemarketing calls are still prohibited on Sundays
under the standard.
ACMA has decided to vary the industry standard because
the Authority reached the conclusion that prohibiting
research calls on a Sunday could potentially reduce
the benefits to the community from well-structured research.
Consistent
with federal law, outlined elsewhere
on this site, the Standard is not intended to
exclude operation of a state or territory enactment to
the extent that the law is capable of operating concurrently
with the standard. For example, if state legislation prohibits
a caller from making a call at a time/day other than that
restricted in the Standard the more stringent
state or territory law will apply. ACMA will review the
minimum requirements for prohibiting calling times and
their relationship to state and territory laws 12 months
after the standard commences.
The Standard also specifies that contact information
must be provided by the person making a telemarketing
call.
That person must reveal, on request, the source from which
the caller obtained the recipient's number. The Standard
does not obligate the caller to delete or correct that
information.
The Standard requires the caller to terminate
the call where the recipient asks for that call to be
terminated or "otherwise indicates that he or she does
not want the call to continue" (for example by informing
the caller that the recipient is not interested in the
subject matter of the call). The Standard does
not, however, set a boundary on when the caller may call
again and how often repreat calls may be made. That will
presumably encourage activism by some consumers who are
recurrently bothered by the charities and researchers
exempted from the Do Not Call register.
The caller is also required to ensure that calling line
identification is enabled at the time that the caller
makes or attempts to make a call.
A major question regarding the Standard is whether
there will be tangible abuses after a transitional period
and whether ACMA will address such abuses through public
shaming and even prosecution of offenders. Few individuals
are in a position to exercise rights under the Standard;
it is for ACMA to act on their behalf.
fax messages
In 2010 the DNC regime was extended to unsolicited facsimile
(fax) messages through the Do Not Call Register Legislation
Amendment Act 2010 (Cth), in effect from 30 May 2010.
The expansion included -
- allowing
fax numbers to be entered on the Do Not Call Register
- prohibiting
the sending of marketing faxes to numbers on the Register,
except in certain circumstances.
-
inserting a new section 125B into the Telecommunications
Act 1997 (Cth), requiring ACMA to determine an
industry standard relating to "the fax marketing
industry".
The
expansion -
responds
to community concerns about the growing number of unsolicited
marketing faxes. The development of a national fax marketing
industry standard is intended to provide the community
with greater certainty regarding the minimum level of
behaviour they can expect from fax marketers. It is
also intended to encourage best practice in fax marketing.
The
fax marketing industry standard will apply to any marketing
fax sent to an Australian number, including any fax intended
to -
- market,
advertise or promote goods or services, land or an interest
in land, a business opportunity or investment opportunity,
or a supplier or potential supplier of such goods or
services
-
solicit donations
-
conduct opinion polling or
-
carry out standard questionnaire-based research.
It
will apply to all fax marketers, including
those that are exempt from the general prohibition from
faxing Australian numbers on the Register (such as charities,
registered political parties, and religious organisations).
The
fax marketing industry standard resembles the Australian
spam regime discussed elsewhere on this site. It will
cover four specific areas -
- the
days and times at which marketing faxes may be sent
-
requiring that marketing faxes contain certain information
about the person who authorised the sending of the fax
-
restricting the number of faxes which may be sent to
a particular Australian number during a particular time
period
-
requiring the provision of information on the fax about
how the recipient can 'opt-out' of receiving future
faxes from the fax marketer
studies
Coverage of the Australian regime include Kent Davey's
2006 'Telemarketing and the Do Not Call Register' in 65
Computers and Law (2006) 14-15, Stuart Loh's
'The new Do Not Call Register' in 65 Computers and
Law (2006) 20-22, Matthew McMillan's 'Do not call
register: telemarketers beware' in 25 Communications
Law Bulletin (2006) 3-7, Nicholas Cole & Katherine
Sainty's 'Do not call register' in 3 Privacy Law Bulletin
3 (2006) 339-340 and the earlier 'Roping in the 'ring'
leaders: nationwide 'do not call' register proposed' in
2(7) Privacy Law Bulletin 99-101.
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