Our reference: 2006/182/1
Mr Garry Croker
Director, Consumer Policy and Privacy
Department of Broadband, Communications and the Digital Economy
Via email: DNC.firstname.lastname@example.org
Dear Mr Croker
Discussion Paper: Do Not Call Register Statutory Review
The Office of the Privacy Commissioner ('the Office') welcomes the opportunity to comment on the Discussion Paper: Do Not Call Register Statutory Review ('the Discussion Paper').
The Office has maintained an interest in the Do Not Call Register ('the Register') and has made a number of submissions supporting its establishment and operation (see Attachment A).
Background to the Statutory Review
The Register was established in May 2007 under the Do Not Call Register Act 2006 (Cth) ('DNCR Act'). The Register enables Australians to opt out of receiving unsolicited commercial telemarketing calls by registering their land line, Voice over Internet Protocol ('VOIP'), satellite and mobile telephones that are used mainly for private or domestic purposes.
Section 45 of the DNCR Act requires that a review be conducted of the legislation relating to the Register before, or as soon as possible after, May 2010.
The Australian Government announced in the 2009-10 Budget that Register will be extended to allow the registration of all telephone and fax numbers, including those used by businesses and emergency services. The Office notes that the current review will not cover the extension of the Register for these purposes. It is understood these changes will require legislative amendments to be implemented.
The Office considers that the Register is an important mechanism to assist individuals to maintain control of how their personal information is handled, and therefore to protect their privacy. Research that the Office conducted in 2007 found that, after financial details and income, respondents were more reluctant to provide their home telephone number to organisations than all other types of personal information. This was also the case in 2001 and 2004 and the number of respondents expressing this reluctance has increased with each survey.
Accordingly, the Office supports measures that will enhance the effectiveness of the Register.
The Discussion Paper observes that the opt-out approach used in the current scheme is operating well. An opt-out approach puts the onus on the individual to act if they wish to limit telemarketing calls. The Discussion Paper asks whether there are ways by which the Register could be improved, for example by adopting an opt-in approach to telemarketing.
Giving individuals a choice to opt-in to receiving telemarketing calls generally, may give people an even greater degree of control over the contact that is initiated with them. However, it is important that such mechanisms for control are balanced against other public interest factors. The Discussion Paper observes that an opt-in approach would have a significant adverse impact on businesses that rely on making telemarketing calls. Also, an opt-in approach could disrupt pre-existing consensual relationships between individuals and organisations.
The opt-out approach under the current scheme is consistent with National Privacy Principle 2.1(c) in the Privacy Act 1988 (Cth) ('Privacy Act'). That principle allows an individual to opt-out of receiving direct marketing from an organisation that uses their personal information for the secondary purpose of direct marketing.
The Discussion Paper notes that 3.54 million phone numbers have been lodged on the Register to June 2009 (p 10). This suggests two things. Firstly, that telemarketing is a significant issue for many Australians. Secondly, that the Register's function and benefits would appear to have been well publicised. Importantly also, the survey cited in the Discussion Paper suggests that the process of opting-out from telemarketing calls is straightforward (p 10).
Taken together, these factors appear to indicate that the current opt-out model for dealing with telemarketing may strike the right balance of public interests. However, to ensure continued community awareness of the option to opt-out the Office would encourage ongoing education and publicity about the Register.
The DNCR Act permits telemarketing calls to be made to an individual if there is consent by the individual. Consent can be express or inferred.
Although express consent is not defined in the DNCR Act, the discussion paper notes that 'express consent' is given when an individual explicitly permits telemarketing calls. At the same time, the Discussion Paper refers to a range of situations where the individual may not be aware that they are doing so. There may be some tension between these two factors in assessing whether such 'express consent' is properly informed.
In the Office's experience, one issue which raises concern is where consent is sought to a wide range of purposes without giving the individual an opportunity to choose which purposes they agree to and which they do not. If an organisation intends to use personal information for the secondary purpose of telemarketing, adequate attention should be drawn to this purpose. It is also preferable to give the individual a specific choice about this use at the time their information is collected. This approach reflects the option in the Discussion Paper 'to require a positive, clear and informed request' (p 7).
In relation to express consent for 'indefinite' timeframes, the Office suggests that such consent should not operate for lengthy, unspecified periods. As the Discussion Paper canvasses (pp7-8), a maximum of six months may be appropriate. Consumer feedback may further inform this question. Whether express consent or inferred consent applies, individuals should be able to withdraw consent at any time, and without difficulty or incurring a charge for giving effect to their request.
In the case of 'inferred consent', it may be appropriate to limit this to existing customers and, if the relationship ends, then to a short period thereafter. The Office supports the position of the Discussion Paper that a 'one-off purchase with no ongoing connection' should generally not be considered inferred consent.
Telephone numbers remain on the Register for three years. The Discussion Paper suggests alternatives such as a five years or making the registration open-ended. The Discussion Paper notes that making registrations open-ended may lead to obsolete information on the Register and that as telephone numbers are re-assigned, some individuals may have their numbers listed on the Register without their knowledge.
The Department may wish to consider the resource requirements of notifying individuals every three years that they would need to re-register, and the effort of individuals needing to do so.
The Office suggests that consideration be given to the option of the registration operating for a slightly longer period, such as five years, if practicable. Another option could be to allow the individual to elect a three or five year period when they register. This would have the added advantage of making it clear to individuals that registration is not open-ended.
The Office supports the proposed education and awareness activity in the lead up to the expiration of the first registrations on the Register in May 2010, as a means of also furthering community awareness of the Register.
The DNCR Act exempts telephone calls from government bodies, political parties and candidates, educational institutions, religious organisations and charitable institutions. Although exempt, the Office notes that these bodies still have to comply with an industry standard made by the Australian Communications and Media Authority ('ACMA'). As well organisations undertaking fundraising over the telephone (including charities) operate under a practice note issued by the Fundraising Institute Australia.
In relation to the question in the Discussion Paper (p9) about 'research calls', which are not defined as 'telemarketing calls' in the DNCR Act, the Office suggests consideration could be given to distinguishing between calls with a commercial purpose and calls with a research purpose. This may assist in ensuring that calls can only be made for appropriate research purposes.
Overall the Office believes that exemptions should only be maintained where there is a clear and demonstrable public interest which reflects community attitudes and values.
Industry codes and standards
The Office notes that most of its comments in relation to the draft Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 were accepted and incorporated into the final version.
The Office would welcome further opportunities for comment when the Industry Standard is reviewed.
Privacy law reform and direct marketing
Finally, the Office notes that the Australian Government has recently released its first stage response to the Australian Law Reform Commission's (ALRC) Report 108 on privacy law reform, including responses to recommendations about direct marketing. In its report the ALRC considered the role of the Register, however the Government will consider this and other telecommunications matters in its second stage response.
If you wish to discuss these comments further please contact Andrew Solomon, Director of Policy, on 02 9284 9708 or by email: email@example.com.
Deputy Privacy Commissioner
Office of the Privacy Commissioner's engagement with the Do Not Call Register
The Office has maintained an interest in the development of the Do Not Call Register scheme. In its May 2005 report, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988, the Office recommended that the Australian Government consider exploring options for establishing a national 'Do Not Contact' register. The Office has also made the following relevant submissions supporting the establishment and operation of the Register.
Submission on the Introduction of a Do Not Call Register: Possible Australian Model Discussion Paper released by the Department of Communications, Information Technology and the Arts (DCITA)
Submission to the inquiry into the provisions of the Do Not Call Register Bill 2006 and the Do Not Call Register (Consequential Amendments) Bill 2006
Submission to the Industry Standard for the Making of Telemarketing Calls Discussion Paper published by ACMA
Submission to the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Draft Industry Standard published by ACMA
Submission to the Eligibility requirements for registration on the Do Not Call Register published by the Department of Broadband, Communications and the Digital Economy
 The Discussion Paper is available at www.dbcde.gov.au/telephone_services/do_not_call/statutory_review.
 Discussion Paper, p 3.
 Office of the Privacy Commissioner Survey results: 2007 Community Attitudes to Privacy in Australia, p 23, available at www.privacy.gov.au/materials/types/download/8820/6616.
 However, note that personal information collected for the primary purpose of direct marketing is permitted to be used and disclosed without further restriction under NPP 2.1.
 Similarly, the Privacy Act has a provision which allows the 'secondary' use of personal information for direct marketing where (among other things) the individual is given an option to stop direct marketing without charge (National Privacy Principle 2.1(c))
 Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007.
 Professional Standard of Charitable Telemarketing Fundraising Practice.
 ALRC Report 108, For Your Information: Australian privacy law and practice, available at www.alrc.gov.au/inquiries/title/alrc108/index.html, see pp 2520-2531. The Office's submission to the ALRC Discussion Paper 72 is available at www.privacy.gov.au/materials/types/download/9111/6748
 Office of the Privacy Commissioner: Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988. Available at www.privacy.gov.au/materials/types/download/8033/6049