pdf (503.36 KB)

Key recommendations

1. The Office of the Privacy Commissioner (the Office) welcomes the opportunity to provide comments to the Australian Communication and Media Authority on its discussion paper titled Developing an industry standard for the fax marketing industry.[1] The Office makes the following recommendations in relation to the issues raised in the discussion paper:

• a. The Office supports the adoption of the telemarketing (including fax marketing) calling times set out in the Australian Direct Marketing Association Direct Marketing Code of Practice;
• b. The Office suggests that fax marketers be required to provide a similar amount of information to recipients as is required of telemarketers under the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2000, insofar as that is practicable or useful. However, the Office also suggests that fax marketers be required to provide their Australian Business Number on marketing faxes, to assist identification in the event of enforcement proceedings; and
• c. The Office suggests introducing a requirement for marketing faxes to contain a statement advising recipients that they may opt out of receiving future messages, and the name and contact details of a representative who may be contacted in order to opt out. Further, the Office suggests that this requirement include that the statement and contact details be clearly displayed on the first page of the fax message in a legible font.

Office of the Privacy Commissioner

1. The Office of the Privacy Commissioner (the Office) is an independent statutory body whose purpose is to promote and protect privacy in Australia. The Office, established under the Privacy Act 1988 (Cth) (the Privacy Act), has responsibilities for the protection of individuals' personal information that is handled by Australian and ACT Government agencies, and personal information held by all large private sector organisations, all health service providers and some small businesses.

Background

Discussion paper

2. The Office welcomes the opportunity to make a submission on the Developing an industry standard for the fax marketing industry discussion paper (the Discussion Paper). The Office understands that the Discussion Paper has been prepared by the Australian Communications and Media Authority (the ACMA) to invite comment on the central issues to be addressed by the fax marketing industry standard (the Standard) which ACMA is required to develop under s125B of the Telecommunications Act 1997 (the Telecommunications Act).

3. Section 125B was inserted into the Telecommunications Act by the Do Not Call Register Legislation Amendment Act 2010 in relation to the expansion of the Do Not Call Register to include facsimile (fax) numbers.

4. In this submission, the Office considers the issues which the Standard must address in accordance with s125B of the Telecommunications Act, as summarised in the Discussion Paper.

Previous involvement of the Office with the Do Not Call Register

5. The Office has maintained an ongoing interest in the development, implementation and administration of the Do Not Call Register. Notably, the Privacy Commissioner (then Deputy Privacy Commissioner), Timothy Pilgrim, was a member of the Do Not Call Register Scheme Steering Committee.

6. The Office has also made a number of submissions relating to the Do Not Call Register including the following:

• a. In September 2006, the Office made a submission to ACMA in relation to the Industry Standard for the Making of Telemarketing Calls Discussion Paper;[2] and
• b. In January 2007, the Office made a submission to ACMA in relation to the draft industry standard for telemarketing and research calls.[3]

7. Relevantly, the Office has also previously made submissions in relation to the regulation of fax marketing:

• a. In December 2005, the Office made a submission to the then Department of Communications, Information Technology and the Arts (DCITA) regarding the Introduction of a Do Not Call Register: Possible Australian Model Discussion Paper[4], in which the Office recommended that any proposed Do Not Call register cover commercial messages sent by facsimile;
• b. In February 2006, the Office made a submission to DCITA in relation to the review of the Spam Act 2003[5], in which it reiterated its support for regulation of unsolicited fax marketing; and
• c. In September 2007, the Office made a submission to DCITA on the Unsolicited Commercial Faxes of "Fax Spam" Discussion Paper[6], in which it again reiterated the position set out in previous submissions.

8. The comments in this submission regarding an industry standard for the fax marketing industry are provided with the intention of contributing to the long-term effectiveness of the Do Not Call Register.

Coverage of the Privacy Act

9. The private sector provisions of the Privacy Act apply to organisations (including not-for-profit organisations) 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.

10. The private sector provisions of the Privacy Act centre around 10 National Privacy Principles (the NPPs) that set out how private sector organisations should collect, use, keep secure and disclose personal information.

11. The Office notes that the private sector provisions of the Privacy Act will continue to operate alongside the provisions of the Do Not Call Register Act 2006 and the Standard for the fax marketing industry, once it is established. Accordingly, organisations bound by the Privacy Act must continue to comply with that Act, as well as the Standard, when making fax marketing calls, or causing such calls to be made.

12. The application of the Privacy Act to fax marketing is summarised below.

Application of the Privacy Act to Fax Marketing

13. The Privacy Act defines ‘personal information' as information about an individual whose identity is apparent, or whose identity can be reasonably ascertained from the information.[7]

14. The coverage of the Privacy Act extends only to ‘personal information'.

15. In the experience of the Office, the information used to send fax marketing messages is generally a telephone number, in isolation from any other information. In that circumstance, that information would not be ‘personal information' within the meaning of the Privacy Act. Accordingly, the Privacy Act may not apply to the vast majority of fax marketing messages.

Other industry standards for fax marketing

16. Section 112(1C) of the Telecommunications Act provides that bodies or associations that ACMA is satisfied represent sections of the fax marketing industry should develop industry codes that apply to participants in that section of the industry.

17. In September 2003, the Ministerial Council on Consumer Affairs published a document titled Direct Marketing: a Model Code of Practice (the Model Code). The Model Code applies to marketing by means of ‘communication at a distance', the definition of which includes fax marketing.

18. The Office notes that the Australian Direct Marketing Association (ADMA) publishes a Direct Marketing Code of Practice (the ADMA Code) which is clearly based on the Model Code. The ADMA Code applies to ‘telemarketing' which, for the purpose of that code, includes "all activities that use... consumer equipment connected to a telecommunications network to contact a consumer for marketing, advertising, selling goods and services...". As such, the ADMA Code clearly applies to fax marketing.

19. The Office considers it would be helpful to consumers and industry participants for the interaction between the ADMA Code and the Standard to be clearly described in the Standard, for example, whether the current ADMA Code will be superseded by the Standard, or whether both will continue to operate in parallel.

Issues to be considered 

Time at which fax marketeers can contact consumers

20. ACMA seeks comment on the hours and/or days during which marketing faxes should be permitted to be sent or attempted to be sent under the proposed standard.

21. The Office acknowledges that with the addition of fax numbers to the Do Not Call Register, and the commencement of the Standard, consumers will have an effective mechanism to reduce the number of marketing faxes that they receive. In the circumstances, the Office supports adoption of calling hours that are consistent with current community expectations. The ADMA Code permits calling between the hours of 9am and 8pm, Monday to Saturday, and prohibits calls on Sundays and prescribed public holidays. Those calling hours are slightly more restrictive than the calling hours prescribed by the Model Code, which restricts the making of calls to between 8am and 9pm, Monday to Saturday, and prohibits calls on Sundays and prescribed public holidays.

22. The Office notes that while certain pieces of State and Federal legislation restrict calling hours in relation to telemarketing[8], those provisions do not appear to capture fax marketing. Even if they do, the ADMA Code imposes a more restrictive calling window.

23. In the view of the Office, the ADMA Code appears to reflect current industry practice for the majority of fax marketing calls.

Provision of contact information

24. The Office suggests that that the Standard prescribe a minimum amount of information that would enable the recipient of a marketing fax to identify the fax marketer for the purposes of making a complaint against that marketer for calling a number included on the Do Not Call Register.

25. Given that the Standard relates to the Do Not Call Register, for the purpose of consistency, and to avoid consumer and industry confusion, the Office considers that the Standard should be as consistent as is practicable with the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007 (the Telemarketing Standard).

26. The Office notes that s6 of the Telemarketing Standard requires a call operator to provide, amongst other things:

• a. information which enables a call recipient to identify a call operator to their employer or the person on whose behalf a call is made (caller),
• b. the name of the caller or the employer of the call operator,
• c. the contact details of the caller or employer, and
• d. the name and contact details of a person to whom inquiries or complaints may be directed.

27. Accordingly, the Office suggests that the Standard include the following kinds of information:

• a. name and Australian Business Number (ABN) of the fax marketer,
• b. contact details of the fax marketer, and
• c. the name and contact details of a representative of the fax marketer to whom inquiries or complaints may be directed.

28. While the Office considers it desirable that a consistent approach be taken to the different elements of the Do Not Call Register, it is our view that the business-specific focus and written format of fax marketing requires a different approach than with telemarketing in relation to the provision of contact information.

29. In particular:

• a. the requirement that the fax marketer provide its ABN will greatly assist in identifying the relevant entity in the event of enforcement action; that requirement would be easily satisfied in a printed document, but would be cumbersome to fulfil during a telephone call, and
• b. given that the contact details of businesses are generally publically listed, there is little utility in requiring a fax marketer to disclose to a consumer where it obtained that consumer's fax number (as is required by the Telemarketing Standard).

Volume and frequency of marketing faxes

30. ACMA seeks comment on what would be an appropriate restriction on the number of marketing faxes that may be sent, or attempted to be sent by a fax marketer during a particular period to a particular number. The Office has been unable to locate any relevant data on the volume or frequency of fax marketing messages in the Australian market.

31. The Office has previously noted that public concerns regarding fax marketing include:

• a. the cost of receiving messages (in terms of paper, toner...etc.), and
• b. the prevention of or delay in transmission of legitimate messages, while marketing messages are being received.[9]

32. The Office notes that there are several overseas jurisdictions that regulate fax marketing, but do not regulate the volume or frequency of fax marketing.

33. The Office recognises that s125B of the Telecommunications Act has the effect that the Standard must restrict the frequency and volume of marketing faxes. However, in the circumstances, the Office does not consider that it is in a position to offer informed comment on how such a restriction may be determined.

Opting out of receiving faxes

34. The Office suggests that, in order to assist consumers to opt out of future fax marketing, a fax marketer should be required to provide the following information on a marketing fax:

• a. a statement that the consumer has the option to opt out of future fax messages and campaigns from that fax marketer, and
• b. the name of the representative of the fax marketer, and contact details for that representative including a postal address, email address, a voice number and/or a fax number which a consumer could use to contact the fax marketer to opt out.

35. To avoid the circumvention of the purpose of requiring the information, the Office suggests that the Standard prescribe:

• a. a minimum font size for the statement and contact information, and
• b. that the contact information be clearly displayed on the first page of the fax message.

36. In addition, to avoid transferring the costs of advertising to the recipients of unsolicited fax marketing, the Standard should prescribe that the contact options be ‘postage paid' or ‘toll-free', as appropriate. Alternatively, an email address would allow consumers to contact the fax marketer at minimal cost to both.

37. In the Office's view, it would be preferable for the Standard to require a variety of contact methods, to ensure that consumers are not prevented from opting out due to lack of access to the appropriate technology.

[1]<http://www.acma.gov.au/webwr/_assets/main/lib311885/ifc18_2010_fax_marketing_industry_standard_discussion_paper.pdf>

[2] <http://www.privacy.gov.au/materials/types/download/8886/6668>

[3] <http://www.privacy.gov.au/materials/types/download/8655/6500>

[4] <http://www.privacy.gov.au/materials/types/download/8656/6501>

[5] <http://www.privacy.gov.au/materials/types/download/8861/6654%3e%20

[6] <http://www.privacy.gov.au/materials/types/download/8935/6696>

[7] Section 6, Privacy Act 1988.

[8] Regulation 7.8.22, Corporations Regulation 2001 (Cth), in relation to hawking of financial services; s67C, Fair Trading Act 1999 (Vic); ss40A and 40I, Fair Trading Act 1987 (NSW).

[9] Spam Act 2003 Review - see footnote 5.