Skip to main content
Skip to secondary navigation
Menu
Australian Government - Office of the Australian Information Commissioner - Home

Eligibility requirements for registration on the Do Not Call Register; Submission to the Department of Broadband, Communications and the Digital Economy (September 2008)

September 2008 Executive summary The Office supports measures that allow individuals control over how their personal information is handled. The establishment of a national Do Not Call Register (DNCR) has been an important mechanism in helping individuals exercise this control. The Office recogni...

pdfEligibility requirements for registration on the Do Not Call Register; Submission to the Department of Broadband, Communications and the Digital Economy (September 2008)

September 2008

Executive summary

The Office supports measures that allow individuals' control over how their personal information is handled.

The establishment of a national Do Not Call Register (DNCR) has been an important mechanism in helping individuals exercise this control.

The Office recognises that the risks of direct marketing calls interfering with the privacy of individuals are likely to be most pronounced with private or domestic phone numbers, which are already covered by the DNCR. 

However, the Office submits that similar risks may apply to other numbers and that the protections of the DNCR should be extended to these numbers.  Therefore, in response to the questions posed in the Discussion Paper, the Office believes that:

  • the DNCR should be extended to the phone numbers of small businesses, particularly where those numbers are also used for private or domestic purposes.
  • the DNCR should include faxes in its scope, particularly for private and domestic faxes.

Comments on the Discussion Paper

1. Should all telephone numbers be eligible for registration on the DNCR?

The Office believes that the DNCR should be extended to the phone numbers of small businesses, particularly where those numbers are also used for domestic purposes.

Currently, certain telephone numbers can be registered if they are used primarily for private or domestic purposes.[1] Under the Do Not Call Register Act 2006 (Cth) ('the DNCR Act'), a person must not make a telemarketing call, or cause a telemarketing call to be made to a number on the DNCR unless:

  • the call is a designated telemarketing call or
  • the individual has consented.[2]

Business or Personal Information?

Information that serves business purposes can be personal information if it meets the definition in the Privacy Act.  Personal information is defined in the Privacy Act 1988 (Cth) (the Privacy Act).[3]

Whether a telephone or a fax number is personal information or not will depend on the circumstances.  For example, a telemarketer's database may record a person's name next to their telephone number, in which case, both fields would be personal information.  However, in the situation where a telemarketing database contains only phone numbers[4] and has no contextual information to link a number to an identifiable individual that phone or fax number, the number is unlikely to be 'personal information'.

Depending on the context,  the handling of business information can have a bearing on the privacy of individuals.  For example, a business name can be personal information if a business owner incorporates their own name into the business name.  This is often the case for small businesses or sole traders.

The impact of this situation can be particularly pronounced where an individual runs their business from a home office.  In such circumstances, unsolicited direct marketing calls could have a significant impact not just on the operations and efficiency of the business, but also on their home and personal life.

Business-to-business communications

The Discussion Paper states that some stakeholders are concerned that businesses which register their numbers may miss out on potentially useful information.[5]

The United Kingdom's Corporate Telephone Preference Service (CTPS) has responded to this issue by providing clear information to businesses at the point of registration.[6]  The CTPS website advises businesses that they may not receive potentially useful or interesting material.  This approach helps businesses to make an informed decision about what telemarketing they wish to receive. 

If eligibility for the DNCR is extended, similar information could be provided at the point of registration to ensure decision makers are fully informed.

2.  If all numbers are not eligible for registration, should special cases be created for small businesses or emergency services?

The Office supports the extension of eligibility for the DNCR to include phone numbers for small businesses, particularly where numbers may be used for private or domestic purposes.

Small businesses

The Discussion Paper notes that telemarketing's intrusiveness and effects on productivity are particularly strongly felt by small businesses.[7] For example, small business proprietors who work from home may rely on one telephone line for business and personal use (as well as for receiving faxes).  The Office's comments above relating to the impact not just on the operations and efficiency of the business, but also on their home and personal life are relevant in this context as well.

Emergency services and other entities

While the Office recognises the potential public interest in permitting other numbers to be included on the DNCR, these public interests will generally be unrelated to privacy.  Accordingly, the Office has no view on the appropriateness of permitting emergency numbers and numbers beginning with '1' to be listed on the DNCR.

3.  Should the Register be expanded to permit registering fax numbers?

The Office supports the DNCR including faxes in its scope.  This is consistent with views the Office has made previously on this issue[8]

Specifically, the Discussion Paper asks whether:

  • all fax numbers should be registrable or
  • small businesses numbers should be registrable.

However, the Office would also suggest the Department also consider a third option: allowing individuals to register their private or domestic use fax numbers.

Registering business fax numbers

The option of being able to register fax numbers could be beneficial, particularly for small business operators, for the same reasons set out above in regard to those entities being able to register their telephone numbers.

Registering individuals' fax numbers

The Office supports the registration of private or domestic use fax numbers.  In the Office view, the exclusion of fax spam from the Spam Act could detract from the ability of the legislation to reduce the number of unwanted commercial electronic messages.

Extending registration to fax numbers may also help to advance the privacy interests of the Deaf and Hearing-Impaired Community who often communicate via fax.[9] The Office notes that unwanted marketing faxes may also be as intrusive and annoying for some community sectors as unwanted telemarketing calls.  The privacy interests of diverse community members should be accorded equal respect and protection.

Background to this submission

About the Office of the Privacy Commissioner

The Office of the Privacy Commissioner is an independent statutory body responsible for promoting an Australian culture that respects privacy. The Privacy Act 1988 covers Australian and ACT Government agencies, businesses with an annual turnover of more than $3 million, the private health sector, small businesses that trade in personal information, credit providers and credit reporting agencies. The Privacy Commissioner has responsibilities under the Privacy Act and other federal legislation to regulate the way agencies and organisations collect, use, store and disclose individuals' personal information.

The Office's previous engagement with the DNCR

The Office has maintained an interest in the development of the DNCR regime.  In its May 2005 report, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (the OPC Review),  the Office recommended that the Australian Government consider exploring options for establishing a national 'Do Not Contact' register.[10]

The Office has also made the following relevant submissions.

December 2005

Submission on the Introduction of a Do Not Call Register: Possible Australian Model Discussion Paper[11] (DNCR Discussion Paper) released by the Department of Communications, Information Technology and the Arts (DCITA)

June 2006

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[12]

September 2006

Submission to the Industry Standard for the Making of Telemarketing Calls Discussion Paper published by ACMA[13]

January 2007

Submission to the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Draft Industry Standard published by ACMA[14]

Interaction of the Privacy Act and the DNCR

The private sector provisions of the Privacy Act[15] apply to organisations (including not-for-profit entities) with an annual turnover of more than $3 million and, in particular circumstances, some small businesses with an annual turnover of $3 million or less.[16] These provisions consist of 10 National Privacy Principles (the NPPs) that set out how private sector organisations should collect, use and disclose, and secure personal information.[17]

The Office notes that the private sector provisions of the Privacy Act will continue to operate alongside the provisions of the DNCR Act and the ACMA Industry Standard for the making of telemarketing and research calls. This means that organisations bound by the Privacy Act must continue to comply with that Act, as well as the ACMA Industry Standard when making, or causing telemarketing calls to be made.

Application of the Privacy Act to telemarketing

The NPPs apply to direct marketing and include specific direct marketing provisions. However, the application of the specific direct marketing provisions is limited. The use or disclosure of personal information for direct marketing is covered by NPP 2.1. It distinguishes between the primary purposes of collecting personal information and any secondary purposes, and limits the use and disclosure of information for a purpose other than the primary purpose of collection. 

Privacy guidance and telemarketing

For more information on NPP 2.1, please refer to the Office's Guidelines to the National Privacy Principles.[18] For information on NPP 2.1(c), which applies specifically to direct marketing, please refer to the Office's Review of the Private Sector Provisions of the Privacy Act.[19] 

The Office has also produced an information sheet on privacy regulation of electronic direct marketing:  Private sector information sheet 26 - Interaction between the Privacy Act and the Spam Act.[20]

[1] According to the Discussion Paper, the following numbers are eligible for registration: mobile phone numbers, standard telephone numbers, satellite numbers and voice over internet protocol numbers that commence with a '0', and that are 10 digits long.  See Discussion Paper, p 5.

[2]Do Not Call Register Act 2006 (Cth), section 11.  A 'Designated telemarketing call' (i.e, a call which is exempt from section 11), is defined in Schedule 1 of the Act. Consent is defined in Schedule 2. Eligibility requirements are addressed in section 14.

[3] Personal information is defined in section 6 of the Privacy Act as information or opinion about an individual - whether true or not, and whether recorded in a material form or not - whose identity is apparent, or can reasonably be ascertained from the information or opinion.

[4] See The Age, 'No need to cop an earful,' October 29, 2007.  Available at www.theage.com.au/news/troubleshooter/no-need-to-cop-an-earful/2007/10/28/1193548291545.html.  This article discusses the practice of making automated telemarketing calls using a randomly generated database of phone numbers.

[5]  See the Small Enterprise Telecommunications Centre's submission on Eligibility requirements for registration on the Do Not Call Register.  Available at www.setel.com.au/site.php?id=457

[6]Telephone Preference Service.  See www.tpsonline.org.uk/ctps/what/    

[7] Discussion Paper, p 10

[8] See the Office's submission to the Department of Communications, Information Technology and the Arts' Discussion Paper, Unsolicited Commercial Faxes or 'Fax Spam', Submission to the Communications, Information Technology and the Arts (September 2007).  Available at www.privacy.gov.au/materials/types/submissions/view/6696 Also see the Office's submission to the Discussion Paper Introduction of a Do Not Call Register: Possible Australian Model: Discussion Paper (December 2005). Available at www.privacy.gov.au/materials/types/download/8656/6501

[9]Discussion Paper, p 11

[10] Office of the Privacy Commissioner: Getting in on the Act: Review of the Private Sector Provisions of the Privacy Act 1988. Available at www.privacy.gov.au/law/reform/review/. See Recommendation 25

[11] Available from www.privacy.gov.au/materials/types/download/8656/6501.

[12]Available from www.privacy.gov.au/materials/types/submissions/view/6667.

[13]www.privacy.gov.au/materials/types/download/8886/6668.

[14] Available from www.privacy.gov.au/materials/types/submissions/view/6500

[15]www.privacy.gov.au/law/act/

[16] Information for small businesses may be found at www.privacy.gov.au/business/small/

[17] The NPPs may be found at www.privacy.gov.au/materials/types/infosheets/view/6583

[18] Available at www.privacy.gov.au/materials/types/guidelines/view/6582.

[19] Available at www.privacy.gov.au/materials/types/reports/view/6049#4_2

[20]Available at www.privacy.gov.au/materials/types/download/8739/6559