The Federal Court penalised travel agency Getaway Escapes over $300,000 and its director $25,000 for breaching their obligations under the Do Not Call Register Act 2006 (Cth) (‘Act’) and the Telemarketing and Research Calls Industry Standard 2007 (‘Standard’) in 2016. This record fine suggests that the Australian Communications Media Authority (ACMA) is serious about penalising businesses whose marketing policies do not comply with telemarketing and spam laws and industry standards. In this blog, we set out some key obligations which may affect your business.
Do Not Call Numbers on the Do Not Call Register
In proceedings brought by ACMA, the Court found that Getaway Escapes had made 5,293 telemarketing calls to numbers on the Do Not Call Register (‘Register’), which is strictly prohibited under the Act. Notably this prohibition does not include product recall or fault rectification calls, appointment rescheduling/reminder calls, calls relating to payments and calls which are in response to a customer’s request or inquiry.
The Act allows individuals to list their private phone or fax numbers on the Register in order to stop receiving pesky telemarketing calls or faxes. Businesses are under an obligation to regularly check the Register to ensure that they stop ringing registered numbers within thirty days of their listing. Importantly, these obligations still apply to businesses who engage other companies to conduct telemarketing for them.
Therefore, it is imperative that your business routinely checks the Register and respects the rights of individuals to withdraw their consent to receive such calls. Compliance with the Act must be a key component of the marketing practices of all responsible businesses. This is particularly so in an environment where ACMA has breaches of the Act on its hit list and given the costly penalties which can be imposed and the capacity of individuals to complain to ACMA. Directors can face personal penalties if they are found to be knowingly concerned in or party to a company’s breaches of the Act.
The Standard sets out the criteria which must be met to legally conduct telemarketing calls. Half of the penalties imposed on Getaway Escapes were due to a breach of the Standard, namely that Getaway Escapes hid its number from appearing on recipients’ caller IDs. Requiring that individuals can identify the caller is central to the Standard – callers must identify themselves, the company they are working for and the purpose of the call at the outset of the call. The Standard also prescribes times within which calls can and cannot be made, unless individuals have consented in advance. The Standard can be accessed here.
The Spam Act
Businesses should also be aware of their obligations in relation to commercial electronic messages, spam, sent via email, SMS, MMS or instant messaging services. Electronic messages that are commercial include messages selling or advertising goods or services, or directing the recipient to a location where goods and services are sold or advertised. The Spam Act 2003 (‘Spam Act’) prohibits the sending of unsolicited commercial electronic messages. While it may be tempting to add the email addresses of unsuspecting clients to your mailing list, or even emails from potential clients which are available online or through LinkedIn, the Spam Act prohibits this.
There are 3 necessary components of a valid electronic message:
- Consent: Recipients must have given express consent such as ticking a box on a website, to receive the material or consent may be inferred. Inferences may be made from an existing relationship where there is an expectation of receiving the messages. It is also worth noting businesses cannot send an electronic message to seek consent as this is in itself a prohibited commercial message as it seeks to establish a business relationship. Businesses should ensure they have consent from the recipient before sending a commercial electronic message. Keeping a record of the consent is also essential.
- Unsubscribe: All commercial electronic messages must include a clear and easy to use unsubscribe facility so that recipients can opt-out of receiving further messages. Senders have five days to comply with the unsubscribe request.
- Identify: As with telemarketing, all commercial electronic messages must include clear and accurate identifying information. It must include the person or the business that is responsible for authorising the sending of the message as well as how the recipient can contact the sender.
Electronic messages that do not have a commercial purpose are not prohibited by the Spam Act. These are for example, community-focused messages, surveys or newsletters.
ACMC is always on the lookout for practises that breach the Spam Act and will not hesitate to pursue these. Good governance practises, when communicating with potential customers electronically is an essential part of any company’s toolkit.