Telemarketers and organisations conducting telemarketing campaigns are now regulated by the
Do Not Call Register Act 2006 (the DNCR Act), which prohibits telemarketing calls to telephone numbers registered on the national Do Not Call Register. Significant fines apply for non-compliance, including penalties of up to $1.1 million.
The DNCR Act and the Do Not Call Register (Consequential Amendments) Act 2006 received assent on 30 June 2006. From 31 May 2007, the DNCR Act made it illegal for any telemarketer in Australia or overseas to contact a number listed on the Do Not Call Register, unless consent has been received or the call is made on behalf of an organisation which is exempt from the provisions of the Act. For example, certain public interest organisations, such as charitable or educational organisations, are exempt from the prohibition and may call numbers appearing on the register. Overseas telemarketers calling Australian telephone numbers must also comply with the DNCR Act.
The Telecommunications (Do Not Call Register) (Telemarketing and Research Call) Industry Standard 2007 (The Standard) came into effect on 31 May 2007. The Standard applies to all telemarketing calls (even those exempt from the DNCR Act provisions) as well as research calls such as opinion polls.
Any business calling customers or members of the public should carefully review their procedures and policies to ensure compliance with the DNCR Act and the Standard.
The Register
Section 13 of the DNCR Act requires the Australian Communications and Media Authority (ACMA) to establish and maintain (or arrange for a third party to establish and maintain) a national ‘Do Not Call Register’ (the Register).
An accountholder may apply to have his or her Australian telephone number (including a mobile telephone number) entered on the Register if it is used primarily for private domestic purposes. Once registered, the telephone will remain on the Register for 3 years, unless removed earlier or renewed for an additional period.
Prohibition on Calling Registered Numbers
Under Section 11(1) of the DNCR Act, a person must not make, or cause to be made, a telemarketing call to an Australian number if:
(a) the number is registered on the Register, and
(b) the call is not a designated telemarketing marketing call.
A person or organisation will "cause" a telemarketing call if it enters into a contract, arrangement or understanding with another person under which the other person makes, or causes his or her employees or agents to make, telemarketing calls. Where a business has engaged a telemarketing company to make telemarketing calls on behalf of the business, and the telemarketer calls a number on the Register, both the business and the telemarketer will therefore contravene the DNCR Act.
A call will be a "telemarketing call" if having regard to the content and other factors, one of its purposes is:
- the offer to supply goods or services
- advertising or promotion of the supply (or the supplier) of goods and services
- the offer to supply land or an interest in land, or a business/investment opportunity
- advertising or promotion of the supply (or the supplier) of land or an interest in land, or a business/investment opportunity, or
- to solicit donations.
An organisation will contravene the DNCR Act if it enters into a contract or arrangement for telemarketing services and there is a reasonable likelihood that telemarketing calls will be made to telephone numbers on the Register. Further, it is a contravention if the contract or arrangement doesn’t include an express provision that the telemarketer will comply with the DNCR Act and will take all reasonable steps to ensure its employees and agents comply with the DNCR Act.
Part 3 of the DNCR Act enables a telemarketer to access the Register by submitting its call lists to the body conducting the Register on behalf of ACMA. Upon payment of fees, the telemarketer will be advised which numbers on its call list are registered. Telemarketers should update their lists by submitting the list every 30 days to ensure they do not call newly registered numbers.
Designated Telemarketing Calls
Designated Telemarketing Calls to registered telephone numbers are not prohibited under the DNCR Act. Schedule 1 of the DNCR Act sets out the types of calls which fall within the definition of ‘Designated Telemarketing Calls’, including certain calls made or authorised by any of the following public interest bodies:
- government bodies
- religious organisations
- charities or charitable organisations
- educational institutions, and
- political parties, candidates or members of parliament.
Not all calls authorised by the above bodies will be ‘Designated Telemarketing Calls’. The nature and purpose of the call must fall within Schedule 1. For example, where a call authorised by a charitable institution relates to goods or services, the call will not be a Designated Telemarketing Call if the goods and services are not supplied by the charitable institution.
Consent
The prohibition against calling a telephone number on the Register will not apply if the relevant telephone account holder or the account-holder’s nominee has provided the organisation authorising the telemarketing call with "consent" (Section 11(2)). Under Schedule 2 of the DNCR Act, a person will be taken to have consented to a telemarketing call where:
- he or she has provided the express consent (for example, signing a form agreeing to receive calls), or
- consent can be reasonably inferred from the conduct of the accountholder or other relationships between the accountholder and the organisation authorising the call (for example, it may be reasonable for an insurance company to infer that an existing customer consents to marketing calls regarding other insurance products of the company).
Where express consent is given and the duration of the consent is not specified or is indefinite, the express consent is taken to be withdrawn after 3 months. The time limit will impact on banks and other businesses relying on the customer signing a broad enduring consent at the time when the business relationship is established. Under the DNCR Act, indefinite consents will expire after 3 months of the consent being provided, although consent may still be reasonably inferred depending on the continuing business relationship.
Industry Standard
The Standard applies to a wide range of activities, including telemarketing and research calls such as opinion polls. It is not limited to activities falling within the DNCR Act. In particular, designated telemarketing calls must comply with the Standard even though they are exempt from the prohibitions in Section 11 (1) of the DNCR Act. Bodies which are not "telemarketers" in the traditional sense will be required to comply with the Standard.
The Standard sets the minimum standard under which telemarketing and research calls can be made, including;
- times at which calls may be made
- provision of information regarding the callers
- requiring termination of the call in certain circumstances, and
- calling line number identification.
Contravention of the Standard may render a person liable to a penalty of up to $250,000, depending on the breach.
For further information, please contact your usual PricewaterhouseCoopers Legal adviser, Megan Dyball or Lisa Dounis.
