Our reference: D2016/009036
Mr Jeremy Fenton
Unsolicited Communications and Cyber Security
Australian Communications and Media Authority
Via email: Jeremy.Fenton@acma.gov.au
copy: Anna.Snidaro@acma.gov.au; Bridget.Smith@acma.gov.au
Dear Mr Fenton
Submission on the draft Telecommunications (Telemarketing and Research Calls) Industry Standard 2017
Thank you for the opportunity to comment on the draft Telecommunications (Telemarketing and Research Calls) Industry Standard 2017 (the draft Standard).
Background to this consultation
I understand that under the Telecommunications Act 1997 an industry standard must be in place at all times while the Do Not Call Register Act 2006 is in force and that the Telemarketing and Research Industry Standard 2007 (the current Standard) isdue to sunset on 1 April 2017.
As the Australian Communication and Media Authority’s (ACMA) consultation paper explains, an industry standard applies to all telemarketing and research calls, and is intended to provide consumers with greater certainty regarding minimum standards of conduct they can expect from telemarketing calls, and to reduce compliance and administrative costs for industry and regulators.
I support in principle the reduction of duplication in the Standard, to the extent that similar consumer protections are provided by Australian Privacy Principle 7 (APP 7 - direct marketing) under the Privacy Act 1988. However, on this occasion the proposed reduction of duplication would in effect remove existing consumer protections that are not provided by APP 7 regarding small business operators. Unless the ACMA can suggest an alternative mechanism that continues to provide this consumer protection, it may be preferable to retain the relevant provisions in the remade Standard.
Role of the OAIC
The Office of the Australian Information Commissioner (OAIC) is an independent Commonwealth statutory agency. The OAIC was established by the Australian Parliament to bring together three functions:
The Do Not Call Register Act 2006 (DNCR Act)generally prohibits telemarketing calls to phone and fax numbers registered on the Do Not Call Register (DNCR). Certain entities, including registered charities, registered political parties, educational institutions, and government bodies, are exempt from the DNCR Act.
The Privacy Act regulates how ‘APP entities’ handle personal information. APP 7 sets out obligations for APP entities that use or disclose personal information for direct marketing purposes. These include prohibiting organisations from using or disclosing sensitive information for direct marketing without consent and, for other types of direct marketing, providing a simple means for individuals to easily opt out of receiving direct marketing communications.
APP 7 does not apply to the extent that the DNCR Act applies (APP 7.8). Accordingly, APP 7 applies to APP entities generally, and APP entities that are exempt from the DNCR Act, including registered charities, registered political parties, educational institutions, and government bodies.
Privacy Act jurisdiction
A number of small business operators engage in telemarketing. Small business operators are generally exempt from the Privacy Act but their activities are covered by the Standard. Therefore removing requirements from the Standard for telemarketing callers to provide certain information about the call to individuals will diminish consumer protections when a caller is a small business operator. This is because the small business operators would be exempt from the direct marketing provisions of the Privacy Act.
To address this, I suggest ACMA consider alternative mechanisms for the continuation of this consumer safeguard. If no suitable alternative can be devised, it may be preferable to retain the provision in the remade Standard, at least to the extent that a caller is exempt from the Privacy Act.
The ACMA could also consider providing guidance or otherwise promote industry best practice for small businesses handling personal information for telemarketing and research calls. In particular, best practice guidance should be consistent with the privacy protections provided by APP 7 for direct marketing.
Comments against specific proposed changes
The following are my comments against the specific changes proposed in the draft Standard.
Express consent to call during prohibited calling times
I support the proposed requirement to obtain an individual’s express consent when calling outside permitted calling times.
I would encourage industry guidance to accompany this change where appropriate, so that express consent is properly obtained from individuals and so that vulnerable individuals without the capacity to consent are protected by this requirement.
Information to be provided about the call and the entities involved in the call
The name of the employer of the individual making the call
I support the proposed requirement to provide information about the caller’s employer (the calling company) as soon as the call starts, as this will enhance transparency for individuals subject to telemarketing and research calls.
Information to be provided within a reasonable time (not exceeding seven days)
The draft Standard removes existing provisions 6(4) (which applies to telemarketing calls) and 6A(6) (which applies to research calls), that require the caller to give, or cause to be given, the following information to the call recipient within a reasonable time (not exceeding 7 days) after being asked to do so by the call recipient:
- details of where the person calling obtained the Australian number called, or that it was obtained from a natural person;
- the name of the person the call was intended for (if applicable);
- the name and contact details of any entity that disclosed to the caller the Australian number called and/or the name of the person for whom the call was intended.
I agree with the reasoning in the ACMA’s consultation paper that the requirements of subsections 6(4)(a), 6(4)(b), 6A(6)(a) and 6A(6)(b) are more effectively delivered in other sections of the draft Standard.
I recognise that subsections 6(4)(c) and 6A(6)(c) in the existing Standard are similar to APP 7.6(e) and that if they are removed from the Standard many individuals will still have a right to request the source of personal information about them under APP 7.6(e). However, if ss6(4)(c) and 6A(6)(c) are removed from the Standard, callers who are exempt from APP 7 – due to the small business operator exemption from the Privacy Act detailed above – will no longer be required to provide that information. Accordingly, the proposed removal of that requirement from the Standard would remove an existing consumer right.
I support the proposal in the ACMA’s consultation paper to publish relevant consumer information to accompany the remade Standard and would be happy to collaborate on producing that information.
I would also support initiatives to assist small business operators that conduct telemarketing to follow best practice and OAIC guidance, consistent with APP 7 privacy protections, to promote consistency and transparency in direct marketing practices across the industry. I note that my office is currently reviewing the OAIC’s guidance regarding APP 7 (direct marketing) obligations, for business and consumer audiences.
If you would like to discuss any of the comments above or have any questions, please contact Jacob Suidgeest on [contact details removed].
Australian Information Commissioner
Australian Privacy Commissioner
15 December 2016
 See section 6D ’of the Privacy Act 1988 (Small business and small business operators),
Automatic sunsetting of legislative instruments – Proposal to remake the Telemarketing and Research Industry Standard 2007: Consultation Paper (November 2016), page 6.
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