TM&Priv4

TELEMARKETING AND THE PROTECTION

OF THE PRIVACY OF INDIVIDUALS

EXECUTIVE SUMMARY

On 15 September 1994 the Minister for Communications and the Arts, the Honourable Michael Lee ("the Minister") requested that AUSTEL establish an advisory committee to consider telemarketing and other telecommunications privacy issues of particular concern. In accordance with the Minister's request AUSTEL established the Privacy Advisory Committee ("the PAC") to assist AUSTEL in providing advice to the Minister on telemarketing and other telecommunications privacy issues. This Report on Telemarketing and the Protection of the Privacy of Individuals is provided by the PAC in response to the Minister's request that AUSTEL provide advice on telemarketing.

In relation to telemarketing the Minister indicated that the issue continues to be a source of complaints by telephone users and that he would appreciate particular attention being given to the ways in which residential users are able to have the greatest degree of control over the calls they receive. In accordance with this indication given by the Minister the PAC considered that the focus of its examination of telemarketing telecommunications privacy issues should be on "telemarketing and related telecommunications activities" which have the potential to intrude into the privacy of individuals. For the purposes of the PAC's examination of telemarketing telecommunications privacy issues the PAC has adopted the following definition of "telemarketing and related telecommunications activities":

"All activities which relate directly or indirectly to the marketing of goods or services, surveying, market research, fundraising or polling and which involve the use of a telephone, facsimile machine or any other customer equipment connected to a telecommunications network to contact an individual."

The above definition of "telemarketing and related telecommunications activities" is intended to include the following activities undertaken using a telephone, facsimile machine or any other customer equipment connected to a telecommunications network:

an organisation marketing goods or services to individuals;
the surveying of individuals by an organisation;
an organisation contacting individuals for the purpose of market research;
a charity or other non-profit organisation seeking donations from individuals; and
the polling of individuals by an organisation.

In this Report all references to "telemarketing activities" should be considered to be references to "telemarketing and related telecommunications activities" as defined above unless the contrary intention appears.

Traditionally telemarketing activities have been undertaken using the telephone. However, telemarketing activities are now being undertaken by organisations using facsimile machines, automatic calling equipment ("ACE"), computers and other customer equipment which is capable of being connected to a telecommunications network. Almost half of the adult population has received a telephone call as a result of an organisation undertaking telemarketing activities. A significant number of complaints concerning telemarketing activities are received by AUSTEL, the Minister, the Telecommunications Industry Ombudsman, the Privacy Commissioner, the Australian Direct Marketing Association ("ADMA") and the Australian Telemarketing Association ("ATA").

Telemarketing activities affect two main aspects of the privacy of individuals, namely:

privacy in the sense of freedom from intrusion; and
privacy in terms of the control of personal information.

Freedom from intrusion is sometimes expressed as the right to quiet enjoyment of one's home. Telemarketing activities have the capacity to unduly intrude into an individual's privacy because these activities are mostly carried out at the individual's residence and out of normal business hours. Issues relating to the control of personal information by organisations which undertake telemarketing activities are beyond the scope of this Report. The PAC is separately considering the issues relating to the control of personal information by carriers and service providers.

The areas of law relevant to a consideration of the freedom from intrusion issues relating to telemarketing activities are telecommunications law, privacy law and trade practices and State and Territory Fair Trading laws. The PAC considers that section 88 of the Telecommunications Act 1991 (Cth) ("the Telecommunications Act") does not adequately address the privacy concerns of individuals relating to telemarketing activities undertaken by carriers and service providers and that AUSTEL does not have sufficient functions or powers to resolve these privacy concerns of individuals. The PAC considers that the neither the Privacy Act 1988 (Cth) ("the Privacy Act"), the Trade Practices Act 1974 (Cth) ("the Trade Practices Act") or State and Territory Fair Trading legislation addresses the privacy concerns of individuals relating to telemarketing activities.

In Australia the five privacy protections which to varying degrees address the privacy concerns of individuals relating to telemarketing activities are ADMA's Standards of Practice When Telemarketing, ADMA's Preference Scheme, the ATA's review of membership procedure, AUSTEL's "junk fax" register and the Australian Privacy Charter. Additionally, Australia has ratified the International Covenant on Civil and Political Rights which may provide a basis for the Federal Government exercising the external affairs power contained in the Commonwealth Constitution to legislate to protect the privacy of individuals from intrusion by organisations in both the public and private sectors undertaking telemarketing activities.

Suggested non-regulatory solutions to resolve the privacy concerns of individuals relating to telemarketing activities include a directory marking scheme, the establishment of a preference list, caller identification technology, distinctive ring technology, answering machines or services, inbound call blockers and silent line telephone numbers. The PAC considers that neither a directory marking scheme or the establishment of a preference list would resolve these privacy concerns of individuals and that caller identification technology, distinctive ring technology, answering machines or services, inbound call blockers and silent line telephone numbers would only partially assist in resolving these privacy concerns of individuals.

Suggested regulatory solutions to resolve the privacy concerns of individuals relating to telemarketing activities include models based on self-regulation, co-regulation and government regulation. The PAC considers that the development of a voluntary code of practice under a self-regulatory or co-regulatory scheme would not resolve these privacy concerns of individuals. The PAC considers that the development of a mandatory code of practice or the enactment of legislation by government would not be appropriate to resolve these privacy concerns of individuals. The PAC considers that a mandatory code of practice should be developed under a co-regulatory scheme to resolve these privacy concerns of individuals. The content of a mandatory code of practice developed under a co-regulatory scheme should address the privacy concerns of individuals relating to telemarketing activities.

A mandatory code of practice developed under a co-regulatory scheme may be implemented at Commonwealth level under telecommunications legislation, privacy legislation or trade practices legislation. Alternatively, a mandatory code of practice developed under a co-regulatory scheme may be implemented at State and Territory level under State and Territory Fair Trading legislation. The PAC considers that it would not be appropriate to implement a mandatory code of practice under the Telecommunications Act, the Privacy Act or the Trade Practices Act but that a mandatory code of practice should be implemented under State and Territory Fair Trading legislation.

Raising public awareness in relation to telemarketing activities may partially assist in resolving the privacy concerns of individuals relating to these activities. The PAC considers that public awareness in relation to telemarketing activities should be raised through use of AUSTEL's existing procedures for the distribution of general telecommunications information to the public.

In summary, the recommendations of the PAC to resolve the privacy concerns of individuals relating to telemarketing activities are as follows:

a mandatory code of practice should be developed under a co-regulatory scheme to resolve the privacy concerns of individuals relating to telemarketing activities;
a mandatory code of practice developed under a co-regulatory scheme should require that organisations undertake telemarketing activities in accordance with the following principles:
(1) where an individual advises an organisation which undertakes telemarketing activities that he or she does not wish to be contacted by it then the organisation should not contact the individual for a defined time period ranging from six months to when the individual advises the organisation that he or she again wishes to be contacted by it;

(2) an organisation should maintain an in-house do-not-contact list of individuals who have advised the organisation that they do not wish to be contacted by it;

(3) without an individual's consent an organisation should not use the telephone or ACE to contact the individual before 8 am or after 9 pm local time at the individual's location or on Christmas Day, Good Friday or Easter Sunday;

(4) when an organisation contacts an individual the organisation should clearly identify itself, any other body that the organisation represents and the organisation's purpose for contacting the individual;

(5) without an individual's consent an organisation should not contact the individual more than once during any 30 day period for the same or a similar purpose;

(6) when an organisation contacts an individual the organisation should at the request of the individual provide the following information:

(i) the organisation's telephone number and address;

(ii) details of the source from which the organisation has obtained the individual's contact details;

(iii) the name of any industry association or equivalent body to which the organisation belongs; and

(iv) the name of any body responsible for dealing with any complaint the individual may have relating to the contact.

(7) where an organisation uses the telephone to contact an individual the organisation should release the line within 5 seconds of the individual hanging up the telephone or otherwise indicating that he or she requires the organisation to release his or her line; and

(8) without an individual's consent an organisation should not contact the individual using ACE to convey an artificial or prerecorded voice;
a mandatory code of practice developed under a co-regulatory scheme should be implemented under State and Territory Fair Trading legislation; and
public awareness in relation to telemarketing activities should be raised through use of AUSTEL's existing procedures for the distribution of general telecommunications information to the public.

TELEMARKETING AND THE PROTECTION

OF THE PRIVACY OF INDIVIDUALS

1. INTRODUCTION

Individuals continue to make complaints concerning telemarketing activities which they consider to be an intrusive invasion of their privacy. Organisations may undertake telemarketing activities for purposes including sales, customer service, information provision, fundraising, political polling, market research and debt collection.[1] Traditionally telemarketing activities have been undertaken using the telephone. However, telemarketing activities are now being undertaken by organisations using facsimile machines, automatic calling equipment, computers and other customer equipment which is capable of being connected to a telecommunications network. Telemarketing activities may intrude into the privacy of individuals where organisations undertaking these activities contact them without their consent.

On 15 September 1994 the Minister for Communications and the Arts, the Honourable Michael Lee ("the Minister") requested that AUSTEL establish an advisory committee to consider telemarketing and other telecommunications privacy issues of particular concern. In relation to telemarketing the Minister indicated that the issue continues to be a source of complaints by telephone users and that he would appreciate particular attention being given to the ways in which residential users are able to have the greatest degree of control over the calls they receive.[2] In accordance with the Minister's request AUSTEL established the Privacy Advisory Committee ("the PAC") to assist AUSTEL in providing advice to the Minister on telemarketing and other telecommunications privacy issues.[3]

This Report on Telemarketing and the Protection of the Privacy of Individuals is provided by the PAC in response to the Minister's request that AUSTEL provide advice on telemarketing. The PAC has restricted its examination of telemarketing to a consideration of those issues which involve telecommunications privacy. Issues relating to the control of personal information by organisations which undertake telemarketing activities are beyond the scope of this Report. The PAC is separately considering issues relating to the control of personal information by carriers and service providers. Fair trading issues, for example, misrepresentation, breach of contract, etc and other issues which do not involve telecommunications privacy are also beyond the scope of this Report. The PAC considers that it would be appropriate for fair trading issues to be dealt with by Commonwealth and State and Territory consumer affairs agencies. The PAC acknowledges the work currently being undertaken by the Standing Committee of Officials of Consumer Affairs ("SCOCA") to identify the emerging issues in direct marketing including telemarketing and the release of the SCOCA Working Group on Direct Marketing Discussion Paper in March 1995.[4]

The PAC recognises that carriers and service providers both provide telecommunications services which are used by organisations to undertake telemarketing activities. In addition carriers and service providers themselves undertake telemarketing activities. In examining telemarketing the PAC has focused on telemarketing activities undertaken by all organisations and not the telecommunications services which are provided by carriers and service providers and used by organisations to undertake telemarketing activities.

This Report contains the recommendations of the PAC to resolve the privacy concerns of individuals relating to telemarketing activities. The issues discussed include the nature and extent of telemarketing activities, the privacy concerns of individuals relating to telemarketing activities, relevant areas of law and Australian and international privacy protections relevant to telemarketing. The advantages and disadvantages of suggested non-regulatory and regulatory solutions to resolve these privacy concerns of individuals are considered. The content of regulation to resolve these privacy concerns of individuals is discussed. The Report concludes by examining the advantages and disadvantages of raising public awareness in relation to telemarketing activities.

2. PRIVACY ADVISORY COMMITTEE ("PAC")

AUSTEL established an advisory committee to consider telemarketing and other telecommunications privacy issues of particular concern.[5] The terms of reference of the PAC provide that the PAC is established to assist AUSTEL in carrying out its functions generally and in particular:

"(1) to provide advice and assistance on privacy matters as they relate to the interests of consumers of telecommunications services

(2) to identify general privacy principles applicable to the telecommunications industry and to develop specific guidelines where necessary

(3) (a) to provide advice on proposed codes of conduct to ensure they meet appropriate privacy standards and principles

(b) to provide advice to relevant industry and community groups in developing codes of conduct which reflect the general privacy principles and specific guidelines

(4) to make recommendations concerning appropriate privacy principles, including the principle of "informed choice", about the introduction of new technologies and specifically the use and re-use of personal data."

The Protection of Customer Personal Information - Silent Line Customers Report ("the Silent Line Report") has been provided by the PAC in accordance with these terms of reference.[6] In the Silent Line Report the PAC noted that a high percentage of silent line complaints relate to the receipt of unwanted telemarketing calls whether from the carriers themselves, telemarketing companies, market researchers or charities. The PAC considered that telemarketing, customer profiling and the use of random and sequential automatic diallers required further examination in relation to silent line customers. Rather than examine these issues in isolation the PAC proposed to investigate and report on the impact of unwanted telemarketing calls on silent line customers and the options available for minimising that impact in the wider context of its examination of telemarketing.[7]

3. DEFINITION OF TELEMARKETING

The Australian Marketing Dictionary defines "telemarketing" as:

"A cost effective method of selling to prospective customers and of maintaining contact with existing customers using the telephone and other advanced telecommunications technologies."

In relation to telemarketing the Minister indicated that the issue continues to be a source of complaints by telephone users and that he would appreciate particular attention being given to the ways in which residential users are able to have the greatest degree of control over the calls they receive.[8] In accordance with this indication given by the Minister the PAC considered that the focus of its examination of telemarketing telecommunications privacy issues should be on "telemarketing and related telecommunications activities" which have the potential to intrude into the privacy of individuals. For the purposes of the PAC's examination of telemarketing telecommunications privacy issues the PAC has adopted the following definition of "telemarketing and related telecommunications activities":

"All activities which relate directly or indirectly to the marketing of goods or services, surveying, market research, fundraising or polling and which involve the use of a telephone, facsimile machine or any other customer equipment[9] connected[10] to a telecommunications network[11] to contact an individual."

an organisation marketing goods or services to individuals;
the surveying of individuals by an organisation;
an organisation contacting individuals for the purpose of market research;
a charity or other non-profit organisation seeking donations from individuals; and
the polling of individuals by an organisation.

An organisation may itself undertake the above activities or it may enter into a contract with another body to undertake these activities on its behalf. An organisation may undertake one or several of these activities at any given time. The activities of market researchers, fundraisers and pollsters have been included within this definition of "telemarketing and related telecommunications activities" as individuals consider approaches from these organisations to be just as intrusive as approaches from organisations marketing goods or services.

The above definition of "telemarketing and related telecommunications activities" is intended to include situations where organisations use the telephone, facsimile machine or any other customer equipment connected to a telecommunications network to contact any individual. An individual may be a residential or business telephone user. Complaints made by individuals concerning telemarketing activities indicate that residential telephone users are more likely than business telephone users to consider approaches from organisations undertaking telemarketing activities to be an intrusive invasion of their privacy. The PAC notes that any differences between the privacy expectations of residential and business telephone users may necessitate that further consideration be given to the application of the principles contained in this Report to resolve the privacy concerns of residential and business telephone users in relation to telemarketing activities.

The above definition of "telemarketing and related telecommunications activities" is not intended to include situations where individuals use the telephone, facsimile machine or any other customer equipment connected to a telecommunications network to contact organisations which are marketing goods or services, conducting surveys, undertaking market research, fundraising or polling.

4. THE NATURE AND EXTENT OF TELEMARKETING

Almost half of the adult population has received a telephone call as a result of an organisation undertaking telemarketing activities.[12] A significant number of complaints concerning telemarketing activities are received by AUSTEL, the Minister, the Telecommunications Industry Ombudsman, the Privacy Commissioner, the Australian Direct Marketing Association and the Australian Telemarketing Association. It is estimated that telemarketing comprises 25% (or approximately $1.25 billion) of the lucrative $4.5 billion per year Australian direct marketing industry.[13]

4.1 Telemarketing Equipment

Organisations may undertake telemarketing activities using the telephone, facsimile machines, ACE, computers or other customer equipment which is capable of being connected to a telecommunications network. The telephone has traditionally been used to undertake telemarketing activities. Facsimile machines are now being used to undertake telemarketing activities by sending unsolicited or "junk" faxes to individuals.

Telemarketing activities may also be undertaken using ACE which has been defined as meaning:[14]

"equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers".

ACE includes predictive diallers, auto diallers and other equipment which replaces an operator's involvement in making telephone calls. Predictive diallers set up calls by dialling a number and waiting for an answer and then hand over the call to an operator. The machines are programmed to call busy and unanswered lines again at specified time intervals. Auto diallers automatically dial a programmed set of numbers which may comprise a numerical sequence of numbers extracted randomly or according to a pattern from a telephone directory or list. There is also a range of equipment which wholly or partially replaces an operator's involvement, for example, machines which convey an artificial or prerecorded voice to individuals.[15] ACE may convey an artificial or prerecorded voice to 1,000 individuals each day whereas an employee of an organisation undertaking telemarketing activities may only make approximately 63 telephone calls each day.[16]

Telemarketing activities are now also being undertaken using computers to send messages by electronic mail. The internet is the largest worldwide network of computers which enables the sending of electronic mail between millions of computers. It is estimated that the internet is currently used by 750,000 individuals in Australia.[17]

The latest product available in Australia to organisations which undertake telemarketing activities is Australia-On-Disk which comprises two compact discs one being for homes and the other for businesses. The compact discs contain complete listings of the 55 telephone directories in Australia. Australia-On-Disk has the ability to perform complex search and sorting functions. Australia-On-Disk also includes ACE to assist organisations undertaking telemarketing activities.[18]

4.2 Australian Direct Marketing Association ("ADMA")

The Australian Direct Marketing Association ("ADMA") is the largest association of direct marketing organisations within Australia. ADMA estimates that its members handle approximately 60% of direct marketing business by volume. ADMA currently administers voluntary standards of practice which set down guidelines for use in carrying on business where telemarketing techniques are used to impart or obtain information, promote products or services, arrange sales calls or other telemarketing functions and/or receiving orders in quantity and/or fulfilling those orders.[19] ADMA also operates a preference scheme whereby individuals can opt not to receive mail, faxes, or telephone calls from ADMA's members.

4.3 Australian Telemarketing Association ("ATA")

The Australian Telemarketing Association ("the ATA") is a non-profit voluntary organisation. The purpose of the ATA is stated as being:[20]

"To expand and promote knowledge, understanding and exchange of information about strategies, applications, techniques, skills, equipment and human factors related to the successful use of telephone and associated communications technologies in all phases of the business environment."

As at 20 May 1995 the membership base of the ATA was 588 comprising 207 company voting members, 171 company affiliate members and 210 individual members. The 207 company members and the 171 company affiliate members represent 116 companies. Industry segments represented are very diverse and cover banking, finance, health, communications, breweries, insurance, government, transport, charities, industrial, merchandising, food goods, goods and services companies, consultancy, database provision, telecommunications, software, training, employment bureaus and market research.[21]

4.4 Individual Complaints

The number of individual complaints concerning telemarketing activities received by AUSTEL, the Minister, the Telecommunications Industry Ombudsman ("the TIO"), the Privacy Commissioner, ADMA and the ATA are as follows:

AUSTEL - approximately 1-2 telephone complaints and enquiries each week;[22]

the Minister - approximately 12 written complaints per year;[23]

the TIO - approximately 8-10 telephone calls per week;[24]

the Privacy Commissioner - approximately 3-4 telephone calls per week;[25]

ADMA - approximately 6-10 complaints per month;[26] and

ATA - only a handful of complaints have been received to date.[27]

5. TELEMARKETING AND THE PRIVACY OF INDIVIDUALS

Telemarketing activities affect two main aspects of the privacy of individuals, namely:

privacy in the sense of freedom from intrusion; and
privacy in terms of the control of personal information.

Individuals have expressed varying degrees of concern at breaches of these aspects of privacy as a result of organisations undertaking telemarketing activities.[28]

5.1 Freedom from Intrusion

The aspect of privacy relating to freedom from intrusion is sometimes expressed as the right to quiet enjoyment of one's home. Many people regard unwanted telecommunications as extremely intrusive.[29] Telemarketing activities have the capacity to unduly intrude into an individual's privacy because these activities are mostly carried out at the individual's residence and out of normal business hours.[30]

5.2 Control of Personal Information

The aspect of privacy relating to the control of personal information concerns information privacy and is encompassed by principles such as:[31]

openness about information collection;
limitations on methods of collection;
specification of the purpose for which information is being collected;
limitations on re-using information for purposes not specified; and
expectations about the accuracy and currency of the information.

Commercial initiators of unsolicited telecommunications usually work from lists of potential or likely customers. Individuals are often concerned with questions of how they got onto a particular list and how they might be able to get off it.[32]

The PAC has restricted its examination of telemarketing to a consideration of those issues which involve telecommunications privacy. Issues relating to the control of personal information by organisations which undertake telemarketing activities are beyond the scope of this Report. The PAC is separately considering the issues relating to the control of personal information by carriers and service providers. Issues relating to the control of personal information by organisations which are not carriers or service providers are outside of the terms of reference of the PAC.

5.3 Privacy Concerns of Individuals

Individuals continue to make complaints concerning telemarketing activities which they consider to be an intrusive invasion of their privacy. Individuals are often contacted during the evenings or on weekends as it is at these times that individuals are likely to be at home. However, it is also at these times that individuals wish to be able to relax and avoid such invasions of their privacy.

Many individuals who made submissions to AUSTEL for the purposes of the AUSTEL Privacy Report considered unsolicited telecommunications to be extremely intrusive. Those who made submissions expressed the view that unsolicited telecommunications should not be permitted unless the called party has given prior explicit consent and that there should be a mechanism by which individuals can indicate that they do not wish to receive such calls.[33]

In relation to the privacy aspect of freedom from intrusion complaints received by AUSTEL are usually expressed in terms of either extreme inconvenience or of the expectation of the complainant having autonomy over and quiet enjoyment of their home environment. AUSTEL has received complaints from elderly and disabled people and shift workers who often find answering the telephone difficult or extremely inconvenient. AUSTEL has also received complaints from doctors who have been inconvenienced by telephone calls from organisations undertaking telemarketing activities during working hours.[34]

The impact of unwanted telemarketing calls on silent line customers is evidenced by the fact that some of the most vehement complaints have been generated by people with silent line telephone numbers who have received telephone calls from organisations undertaking telemarketing activities.[35] The options available for minimising the impact of unwanted telemarketing calls on silent line customers would not appear to be generic to silent line customers. The PAC considers that the regulatory and non-regulatory solutions suggested in this Report as possible solutions to resolve the privacy concerns of individuals relating to telemarketing activities are equally applicable to both silent line customers and other customers.

In relation to "junk faxes" AUSTEL conducted an inquiry in 1989 which found that the level of public concern was low and below that which would justify a legislative solution. In 1991 AUSTEL conducted another inquiry which reached substantially the same result.[36]

6. RELEVANT AREAS OF LAW

The areas of law relevant to a consideration of the freedom from intrusion issues relating to telemarketing activities are telecommunications law, privacy law and trade practices and State and Territory Fair Trading laws. These areas of law involve the jurisdiction of the Commonwealth, the States and the Territories.

6.1 Telecommunications Law

The Telecommunications Act 1991 (Cth) ("the Telecommunications Act") provides AUSTEL with broad general functions and powers in relation to the Australian Telecommunications Industry including giving advice and assistance to the Industry.[37] However, the Telecommunications Act does not appear to vest in AUSTEL any functions or powers which directly relate to privacy.

Section 88 of the Telecommunications Act is relevant to carriers and service providers which undertake telemarketing activities. Section 88 prohibits the disclosure or use by a person who is or has been a prescribed person of specified information or documents which come to the person's knowledge or into the person's possession because the person is or was a prescribed person.[38] A prescribed person is an employee of a carrier, a service provider or an employee of a service provider.[39] Section 88 does not apply to the carriers themselves. Information or documents specified include information or documents which relate to the affairs or personal particulars of another person.[40]

Section 88 would apply to telemarketing activities to the extent that such activities involve the disclosure or use by a prescribed person of information or documents which relate to the affairs or personal particulars of another person. Section 88 of the Telecommunications Act would not prevent the disclosure or use of such information or documents by a prescribed person undertaking telemarketing activities in the following circumstances:[41]

where the duties of the prescribed person include undertaking telemarketing activities;
where the person to whom the information or documents relate is reasonably likely to have been made aware that the information or documents are usually disclosed or used for the purpose of telemarketing activities; or
where the person to whom the information or documents relate has consented to the disclosure or use of the information or documents for the purpose of telemarketing activities.

Section 88 of the Telecommunications Act is directed towards protecting the privacy of individuals in terms of the control of their personal information and not their privacy in terms of their freedom from intrusion.

The PAC considers that section 88 of the Telecommunications Act does not adequately address the privacy concerns of individuals relating to telemarketing activities undertaken by carriers and service providers for the following reasons. Section 88 does not apply to the carriers themselves and it is not directed towards protecting the privacy of individuals in terms of their freedom from intrusion.

The carriers, Telstra and Optus, have in place privacy protection policies regulating the disclosure and use of personal information for the purpose of undertaking telemarketing activities.

Under the Telecommunications Act AUSTEL may issue class licences specifying eligible services[42] that persons are permitted to supply subject to the conditions set out in the licences.[43] AUSTEL considers that telemarketing activities which involve the transmission of communications by an organisation on behalf of another may constitute the provision of an eligible service by that organisation. However, there would appear to be very limited scope for AUSTEL to include conditions relating to privacy issues in class licences issued under the Telecommunications Act.[44] AUSTEL does not consider that an eligible service is provided by an organisation where it undertakes telemarketing activities on its own behalf.

In accordance with the provisions of the Telecommunications Act AUSTEL may determine technical standards relating to customer equipment that is connected to a telecommunications network.[45] However, AUSTEL would appear to be unable to directly consider privacy issues when determining technical standards relating to customer equipment.[46]

Under the Telecommunications Act AUSTEL may issue permits for the connection of customer equipment to a telecommunications network where AUSTEL is satisfied that the permit application complies with the requirements of the Act and the connection of the customer equipment in accordance with the conditions included in the permit would comply with the technical standards determined by AUSTEL under the Act.[47] However, AUSTEL would appear to be unable to directly consider privacy issues when deciding whether to issue permits under the Telecommunications Act. Further, AUSTEL would appear to be unable to include in permits issued by it conditions relating to the use of customer equipment.[48]

The PAC considers that AUSTEL does not have sufficient functions or powers to resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Organisations which undertake telemarketing activities on their own behalf are not considered to be subject to the conditions contained in class licences issued by AUSTEL and AUSTEL would appear to be unable to directly consider privacy issues when determining technical standards relating to customer equipment or to include in permits issued by it conditions relating to the use of customer equipment.

6.2 Privacy Law

The Privacy Act 1988 (Cth) ("the Privacy Act") makes provision to protect the privacy of individuals. The Privacy Act contains eleven information privacy principles relating to the collection, storage, access, use and disclosure of personal information which apply to personal information collected and held by agencies[49] of the Commonwealth.[50] However, the privacy aspect of freedom from intrusion is not directly addressed by any of the eleven information privacy principles. The Privacy Act provides only limited protection where personal information is collected by organisations in the private sector by creating regimes for dealings with tax file number information[51] and credit information.[52] The Privacy Act applies to telemarketing activities to the extent that such activities involve the collection and holding of personal information by agencies of the Commonwealth or dealings with credit or tax file number information.

In contrast the New Zealand Privacy Act 1993 (NZ) ("the NZ Privacy Act") applies to personal information collected by organisations in both the public and private sectors.[53] The NZ Privacy Act also makes provision for the development of industry codes of practice.[54] However, the NZ Privacy Act does not provide for a complaints mechanism to handle the issue of privacy and intrusion which means that issues raised by telemarketing activities would remain unresolved.[55]

The PAC considers that the Privacy Act does not address the privacy concerns of individuals relating to telemarketing activities for the following reasons. The privacy aspect of freedom from intrusion is not directly addressed by any of the eleven information privacy principles contained in the Privacy Act and the Act provides only limited protection where personal information is collected by organisations in the private sector.

6.3 Trade Practices and State and Territory Fair Trading Laws

The Trade Practices Act 1974 (Cth) ("the Trade Practices Act") protects consumers by prohibiting a corporation, in trade or commerce, engaging in conduct that is unconscionable,[56] misleading or deceptive.[57] A "corporation" is defined to mean a body corporate that is a foreign corporation, a trading or financial corporation formed within the limits of Australia or incorporated in Australia.[58] The Trade Practices Act would not apply to telemarketing activities undertaken by organisations which are not "corporations" or telemarketing activities undertaken other than in the course of "trade or commerce". The consumer protection provisions contained in the Trade Practices Act are not directed towards protecting the privacy of individuals.[59]

All the States and Territories of Australia have enacted their own Fair Trading legislation to protect consumers.[60] Similar to the Trade Practices Act State and Territory Fair Trading legislation generally provides that a person shall not, in trade or commerce, engage in conduct that is unconscionable,[61] misleading or deceptive.[62] State and Territory Fair Trading legislation would not apply to telemarketing activities undertaken other than in the course of trade or commerce. Again similar to the Trade Practices Act the consumer protection provisions contained in State and Territory Fair Trading legislation are not directed towards protecting the privacy of individuals.[63]

The PAC considers that neither the Trade Practices Act or State and Territory Fair Trading legislation addresses the privacy concerns of individuals relating to telemarketing activities for the reason that the consumer protection provisions contained in this legislation are not directed towards protecting the privacy of individuals.

In summary, the PAC considers that section 88 of the Telecommunications Act does not adequately address the privacy concerns of individuals relating to telemarketing activities undertaken by carriers and service providers and that AUSTEL does not have sufficient functions or powers to resolve these privacy concerns of individuals. The PAC considers that neither the Privacy Act, the Trade Practices Act or State and Territory Fair Trading legislation addresses the privacy concerns of individuals relating to telemarketing activities.

7. AUSTRALIAN PRIVACY PROTECTIONS RELEVANT TO TELEMARKETING

In Australia there are five privacy protections which to varying degrees address the privacy concerns of individuals relating to telemarketing activities. These five privacy protections are ADMA's Standards of Practice When Telemarketing, ADMA's Preference Scheme, the ATA's review of membership procedure, AUSTEL's "junk fax" register and the Australian Privacy Charter.

7.1 ADMA's Standards of Practice When Telemarketing

As previously mentioned ADMA currently administers voluntary standards of practice which set down guidelines for use in carrying on business where telemarketing techniques are used to impart or obtain information, promote products or services, arrange sales calls or other telemarketing functions and/or receiving orders in quantity and/or fulfilling those orders ("ADMA's Standards of Practice").[64] ADMA's Standards of Practice only apply to members of ADMA. ADMA recognises that it is unable to enforce compliance with its Standards of Practice against those organisations which are not members of ADMA and which undertake 40% of telemarketing activities by volume.

Parts A and B of ADMA's Standards of Practice to some degree address the concerns of individuals relating to the privacy aspect of freedom from intrusion.

In relation to the offer in dealing with the customer section 1 of Part A provides that telemarketers shall observe the following practices when making offers to persons or organisations who have no existing relationship with the advertiser responsible for the call campaign:

all telephone contacts should be made during reasonable hours which are considered as between 8 am and 9 pm and not on Christmas Day, Good Friday or Easter Sunday;
the caller should appreciate that he may have interrupted a meal, shower, etc. and freely and promptly offer to call back at a more convenient time;
the caller should provide the person called with a clear opportunity to accept or decline the invitation or offer;
the caller should courteously and promptly accept a refusal of the invitation or offer;
the caller should answer any enquires concerning the product, service or solicitation and also truthfully answer any enquires concerning the source of the potential customer's or donor's name and/or telephone number and any other requested information regarding the telephone call;
the caller shall not make telephone calls in the guise of research or a survey when their intent is to sell or to solicit; and
the telemarketer shall not utilise any form of recorded message unless the person called can clear the line promptly at wish.

In relation to identification in dealing with the customer section 2 of Part A provides that advertisers who use the telephone for promotional purposes shall require the caller at the beginning of the conversation to give his/her name and the name of the person and/or advertiser/organisation responsible for the call campaign and to repeat this information upon request at any time during the conversation.

In relation to lists and privacy in dealing with the customer section 6 of Part A provides that:

telemarketers shall flag or remove from their lists those consumers who ask for their names to be deleted; and
telemarketers shall on request identify the source or sources of a prospect's name and phone number.

In relation to ADMA's preference scheme and privacy in dealing with the client section 5 of Part B provides that:

where a recipient of the telemarketing solicitation has requested that their name be deleted from the promotion lists, this must be adhered to and the appropriate action taken to have the name and number deleted; and
the client and the bureau must accept a consumer's right to privacy and no campaign should be conducted that infringes this right.

It has been suggested that ADMA's Standards of Practice and its procedures for lodging complaints and dispute resolution should be made more accessible to the community through advertising.[65]

7.2 ADMA's Preference Scheme

As previously mentioned ADMA operates a preference scheme ("ADMA's Preference Scheme") whereby individuals can opt not to receive mail, faxes or telephone calls from ADMA's members. Individuals may have their names removed from lists used by ADMA's members by dialling the telephone number 1800 646 664 and registering their names with ADMA. Individuals who register their names may not be approached by mail, telephone or facsimile by ADMA's members. All individuals who register their names are assumed to have requested that their name be deleted from mailing lists used by ADMA's members unless they specifically request that their name be removed from telephone and/or facsimile lists used by ADMA's members.[66]

A list of all individuals who have registered their names and addresses, telephone numbers and/or facsimile numbers on ADMA's 1800 service is distributed to ADMA's members every 3 months. Currently ADMA's Preference Scheme contains approximately 25,000 entries with about 1200 mail and 10 telephone and/or facsimile entries being added every 3 months. Only a handful of individuals who have registered their names with ADMA have complained that they have been approached by an ADMA member contrary to their wishes.[67]

ADMA's Preference Scheme is not separately funded and promotion of the scheme is undertaken in conjunction with other ADMA activities such as ADMA functions and promotions and through ADMA media coverage. ADMA's Preference Scheme is also promoted through consumer affairs organisations.[68]

ADMA is currently negotiating with Australia Post to have Australia Post take control of the mailing component of ADMA's Preference Scheme. Australia Post is likely to implement a subject based mail preference scheme similar to a scheme for which there has been a trial conducted in South Australia.

7.3 ATA's Review of Membership Procedure

The ATA asks its members to adhere to ADMA's Standards of Practice. The memberships of ATA's members who do not comply with ADMA's Standards of Practice are reviewed by the ATA. However, the ATA is unable to impose sanctions upon any of its members who do not comply with ADMA's Standards of Practice as these Standards are not included in the ATA's articles of association.

7.4 AUSTEL's "Junk Fax" Register

AUSTEL maintains a "Junk Fax" Register on which the names of individuals who lodge complaints as a result of receiving unsolicited or "junk faxes" are placed. In addition to the name of an individual the "Junk Fax" Register contains the individual's fax number, telephone number, trading name, contact name (where the individual is a company) and the date on which their entry was made in the register. After an individual's name and relevant details are placed on the "Junk Fax" Register a copy of the Register is distributed to the organisation responsible for sending the "junk fax" in relation to which the individual lodged the complaint. As at 4 September 1995 AUSTEL's "Junk Fax" Register contained 477 entries.

7.5 Australian Privacy Charter

The Australian Privacy Charter ("the Privacy Charter") was issued by the Australian Privacy Charter Council ("the APC Council") in December 1994.[69] The APC Council aims to take privacy protection beyond the regulatory environment and into the private sector as an issue of best practice.[70]

The Privacy Charter recognises that people have a right to privacy of their own body, private space, privacy of communications, information privacy (rights concerning information about a person) and freedom from surveillance. The Privacy Charter sets out 18 general privacy and data protection standards. The privacy principles are stated as being a general statement of the privacy protection that Australians should expect to see observed by both the public and private sectors. The privacy principles are intended to act as a bench mark against which the practices of business and government, and the adequacy of legislation and codes, may be measured. However, the privacy principles have no legal status and create no binding obligations.

The privacy principles contained in the Privacy Charter which are relevant to telemarketing activities are as follows:[71]

technologies, administrative systems, commercial services or individual activities with potential to interfere with privacy should not be used or introduced unless the public interest in doing so outweighs any consequent dangers to privacy;
individual consent justifies exceptions to some Privacy Principles;
there should be a policy of openness about the existence and operation of technologies, administrative systems, services or activities with potential to interfere with privacy;
people have a right to private space in which to conduct their personal affairs; and
people should not have to pay in order to exercise their rights of privacy described in this Charter.

8. INTERNATIONAL PRIVACY PROTECTION RELEVANT TO TELEMARKETING

The International Covenant on Civil and Political Rights ("the ICCPR") is relevant to telemarketing and the protection of the privacy of individuals. Article 17 of the ICCPR provides:

"1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to protection of the law against such interference or attacks."

Australia ratified the ICCPR on 12 August 1980. This act of ratification created binding obligations in international law which require Australia to observe the terms of the ICCPR including Article 17 relating to the right of privacy.

There may be an argument that individuals who are contacted by organisations undertaking telemarketing activities are being subjected to arbitrary interference with their privacy, family or home. In which case Australia may be under an obligation to provide individuals with legal protection against such interference with their privacy. However, the right to privacy contained in Article 17 of the ICCPR is not an absolute right. The concept of "arbitrariness" requires that consideration be given to the interests and purposes which may conflict with this right of privacy. These interests and purposes may include the interests of the economic well-being of Australia and the protection of the rights or freedoms of others.

The ICCPR may provide a basis for the Federal Government exercising the external affairs power contained in the Commonwealth Constitution to legislate to protect the privacy of individuals from intrusion by organisations in both the public and private sectors undertaking telemarketing activities. The Attorney-General's Department has provided advice to the House of Representatives Standing Committee on Legal and Constitutional Affairs which concludes that the Commonwealth could enact legislation giving a right to privacy with exceptions in the cases of "reasonable" interferences.[72] The Australian Law Reform Commission and the Administrative Review Council have expressed the view that the external affairs power would provide the Commonwealth with the Constitutional power necessary to enable the Federal Government to legislate with respect to privacy so far as the private sector is concerned by extending the application of the Privacy Act to this sector.[73]

9. NON-REGULATORY SOLUTIONS

There are several non-regulatory mechanisms which have been suggested as possible solutions to resolve the privacy concerns of individuals relating to telemarketing activities. Suggested non-regulatory solutions include a directory marking scheme, the establishment of a preference list, caller identification technology, distinctive ring technology, answering machines or services, inbound call blockers and silent line telephone numbers. The advantages and disadvantages of each of these suggested non-regulatory solutions are discussed below.

9.1 Directory Marking

A directory marking scheme would involve an asterisk being printed beside each individual's entry in the telephone directory to indicate the individual's preference in relation to whether or not he or she wishes to receive telephone calls from organisations undertaking telemarketing activities. Alternatively, the asterisk could be a reference to a more detailed set of preferences contained in a telephone directory stored in electronic form.[74] The costs of administering a directory marking scheme would include advertising the availability of such a scheme, maintaining a database of preferences, receiving and registering preferences, updating preferences, correcting errors and dealing with complaints.

The advantages of a directory marking scheme include:

all individuals listed in the telephone directory would be given the opportunity to indicate whether or not they wish to receive telephone calls from organisations undertaking telemarketing activities; and
a list indicating whether or not individuals wish to receive telephone calls from organisations undertaking telemarketing activities would be readily available to these organisations.

The disadvantages of a directory marking scheme include:

the difficulty of obtaining sufficient funding and resources to administer a directory marking scheme;
directory marking would be required to be done by the body responsible for publishing the telephone directory which is currently Telstra and Telstra has previously expressed the view that it would be reluctant to be involved in a directory marking scheme;[75]
the list indicating whether or not individuals wish to receive telephone calls from organisations undertaking telemarketing activities would only be able to updated annually when the telephone directory is published;
a detailed set of preferences would be required to be contained in the telephone directory stored in electronic form to distinguish between different types of telemarketing activities and Telstra has previously expressed the view that it is opposed to any form of marking which is coded and needs decoding;[76]
existing legislation does not provide for the implementation of a directory marking scheme;
it would be difficult to ensure that organisations which undertake telemarketing activities comply with a directory marking scheme; and
effective sanctions would not be able to be imposed upon organisations which do not comply with a directory marking scheme when undertaking telemarketing activities.

The PAC considers that a directory marking scheme would not resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Existing legislation does not provide for the implementation of a directory marking scheme and effective sanctions would not be able to be imposed upon organisations which do not comply with such a scheme.

9.2 Preference List

A preference list could be established which would contain the names and telephone numbers of individuals who object to receiving telephone calls from organisations undertaking telemarketing activities. The preference list would be distributed to organisations which undertake telemarketing activities so that these organisations could then "scrub" their lists to ensure that telemarketing calls are not made to individuals who are listed on the preference list.[77] The costs of administering a preference list would include advertising the availability of such a list, maintaining a database of individuals' preferences, receiving and registering individuals' preferences, updating individuals' preferences, distributing list updates, correcting errors and dealing with complaints.

The advantages of establishing a preference list include:

a list indicating individuals who object to receiving telephone calls from organisations undertaking telemarketing activities would be readily available to these organisations; and
a preference list may be updated regularly.

The disadvantages of establishing a preference list include:

the difficulty of obtaining sufficient funding and resources to administer the preference list;
the problem of determining the appropriate body to be responsible for the administration of the preference list;
existing legislation does not provide for the establishment of a preference list;
the difficulty of ensuring that organisations which undertake telemarketing activities comply with a preference list; and
effective sanctions would not be able to be imposed upon organisations which do not comply with a preference list when undertaking telemarketing activities.

The PAC considers that the establishment of a preference list would not resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Existing legislation does not provide for the establishment of a preference list and effective sanctions would not be able to be imposed upon organisations which do not comply with such a list

9.3 Caller Identification ("Caller ID")

Caller identification ("Caller ID") technology would enable an individual to receive the telephone number and possibly the name of the calling party on a calling number display ("CND") on his or her telephone whilst it is ringing. An individual would be in a position to choose whether or not to answer telephone calls from organisations undertaking telemarketing activities provided that he or she could identify calls from these organisations by the telephone number or text appearing on a CND. To assist individuals identifying telephone calls from organisations undertaking telemarketing activities these organisations could be prohibited from blocking the transmission of their telephone number and name. However, Telstra, Optus and Vodafone may introduce the Caller ID service with only the telephone number of the calling party appearing on a CND. The Caller ID service is unlikely to be available to individuals until mid-1996 at the earliest.

The advantages of relying on Caller ID technology to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would be in a position to choose whether or not to answer telephone calls from organisations undertaking telemarketing activities provided that they could identify calls from these organisations by the telephone number or text appearing on a CND; and
when Caller ID technology is introduced it will be readily available to all individuals.

The disadvantages of relying on Caller ID technology to resolve the privacy concerns of individuals relating to telemarketing activities include:

when Caller ID technology is available individuals will have to pay to obtain the Caller ID service; and
individuals may find it difficult to identify telephone calls from organisations undertaking telemarketing activities by the telephone number or text appearing on a CND.

At present the PAC considers that the introduction of Caller ID technology may only partially assist in resolving the privacy concerns of individuals relating to telemarketing activities for the reason that individuals may find it difficult to identify telephone calls from organisations undertaking telemarketing activities by the telephone number or text appearing on a CND. However, the PAC will further consider the extent to which CND technology would resolve the privacy concerns of individuals relating to telemarketing activities in the context of its examination of the issues associated with the introduction of the technology.

9.4 Distinctive Ring

Distinctive ring technology would enable an individual to program his or her telephone to give two different rings. The distinctive ring may be programmed for telephone calls an individual wishes to accept or for telephone calls which an individual does not wish to answer.[78] To avoid answering telephone calls from the large number of organisations undertaking telemarketing activities it would only be practicable for an individual to program his or her telephone to give a distinctive ring for telephone calls that he or she wishes to accept. Distinctive ring technology is unlikely to be available to individuals until mid-1996 at the earliest.

The advantages of relying on distinctive ring technology to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would be able to avoid answering telephone calls from organisations undertaking telemarketing activities where their telephone is programmed to give a distinctive ring for calls that they wish to accept;
when distinctive ring technology is introduced it will be readily available to all individuals; and
elderly and disabled people would only have to approach the telephone to answer calls which they wish to accept.

The disadvantages of relying on distinctive ring technology to resolve the privacy concerns of individuals relating to telemarketing activities include:

when distinctive ring technology is available individuals will have to pay to obtain the technology; and
individuals who relied on distinctive ring technology to decide whether or not to answer telephone calls would risk not answering important calls from unknown telephone numbers such as emergency services and payphones.

The PAC considers that the introduction of distinctive ring technology may only partially assist in resolving the privacy concerns of individuals relating to telemarketing activities for the reason that individuals who relied on distinctive ring technology to decide whether or not to answer telephone calls would risk not answering important calls from unknown telephone numbers.

9.5 Answering Machines or Services

Answering machines or services may be used by individuals to screen their telephone calls to identify calls from organisations undertaking telemarketing activities.[79] An individual would then be in a position to choose whether or not to answer or return telephone calls from these organisations.

The advantages of relying on answering machines or services to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would be able to choose whether or not to answer or return telephone calls from organisations undertaking telemarketing activities;
answering machines and services are already widely used; and
answering machines and services are readily available.

The disadvantages of relying on answering machines or services to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would have to purchase an answering machine or pay to obtain an answering service if they do not already own such a machine or subscribe to such a service; and
individuals may consider that it is impersonal to use answering machines or services to screen their telephone calls.

The PAC considers that the use of answering machines or services to screen telephone calls may only partially assist in resolving the privacy concerns of individuals relating to telemarketing activities for the reason that not all individuals own answering machines or subscribe to answering services. However, the PAC recognises that individuals who object to receiving telephone calls from organisations undertaking telemarketing activities may consider using answering machines or services to screen their calls.

9.6 Inbound Call Blockers

Inbound call blockers would allow individuals to selectively block their telephone calls. Only those persons who entered a special numeric code onto their touch-tone telephone would be permitted to ring through to an individual's telephone. The devices are highly effective at preventing individuals receiving unwanted telephone calls.[80] However, inbound call blockers are not currently available in Australia.

The advantages of relying on inbound call blockers to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would be able to selectively block their telephone calls including calls from organisations undertaking telemarketing activities to which they have not given their code; and
individuals would not be able to be contacted by organisations undertaking telemarketing activities using ACE.

The disadvantages of relying on inbound call blockers to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would risk not receiving important telephone calls from unexpected sources such as emergency services which do not know their code; and
if inbound call blockers were made available in Australia then individuals would have to purchase the machines.

Even if inbound call blockers were made available in Australia the PAC considers that the use of inbound call blockers would only partially assist in resolving the privacy concerns of individuals relating to telemarketing activities for the reason that individuals would risk not receiving important telephone calls from unexpected sources such as emergency services which do not know their code. However, the PAC recognises that if inbound call blockers were made available in Australia then individuals who object to receiving telephone calls from organisations undertaking telemarketing activities may consider using the machines to selectively block these calls.

9.7 Silent Line Telephone Numbers

Individuals who object to receiving telephone calls from organisations undertaking telemarketing activities may choose to obtain a silent line telephone number. Telstra undertakes not to print a directory entry for individuals with silent line telephone numbers and not to disclose an individual's address or telephone number through the directory assistance services. Individuals may significantly reduce the number of telephone calls they receive from organisations undertaking telemarketing activities by obtaining a silent line telephone number as these organisation often obtain individuals' telephone numbers from the telephone directory.

The advantages of relying on silent line telephone numbers to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals would not receive telephone calls from organisations which rely on the telephone directory to obtain telephone numbers for the purpose of undertaking telemarketing activities;
silent line telephone numbers are already widely used; and
silent line telephone numbers are readily available.

The disadvantages of relying on silent line telephone numbers to resolve the privacy concerns of individuals relating to telemarketing activities include:

individuals with silent line telephone numbers would risk not receiving telephone calls from persons who do not know their silent line telephone number;
individuals may still receive telephone calls from organisations undertaking telemarketing activities using ACE; and
individuals would have to pay to obtain a silent line telephone number.

The PAC considers that the use of silent line telephone numbers would only partially assist in resolving the privacy concerns of individuals relating to telemarketing activities for the following reasons. Individuals would risk not receiving telephone calls from persons who do not know their silent line telephone number and individuals may still receive telephone calls from organisations undertaking telemarketing activities using ACE. The PAC recognises that individuals who object to receiving telephone calls from organisations undertaking telemarketing activities may consider obtaining a silent line telephone number to reduce the number of telephone calls they receive from these organisations.

In summary, the PAC considers that neither a directory marking scheme or the establishment of a preference list would resolve the privacy concerns of individuals relating to telemarketing activities and that Caller ID technology, distinctive ring technology, answering machines or services, inbound call blockers and silent line telephone numbers would only partially assist in resolving these privacy concerns of individuals.

10. REGULATORY SOLUTIONS

There are three regulatory models which have been suggested as possible solutions to resolve the privacy concerns of individuals relating to telemarketing activities. The three regulatory models are self-regulation, co-regulation and government regulation. The advantages and disadvantages of each of these regulatory models are discussed below.

10.1 Self-Regulation

Self-regulation would involve the development of a voluntary code of practice by organisations which undertake telemarketing activities.

The advantages of the development of a voluntary code of practice under a self-regulatory scheme include:

the development of a voluntary code of practice by organisations which undertake telemarketing activities may lead to greater compliance with the code by all organisations which undertake telemarketing activities;
the reputation of organisations which undertake telemarketing activities would be enhanced by compliance with a voluntary code of practice by these organisations;
a voluntary code of practice may be altered in accordance with the changing needs of individuals without the need for legislative amendment;
a voluntary code of practice may be taken into account by tribunals and/or courts in settling disputes between individuals and organisations which undertake telemarketing activities;
where organisations which undertake telemarketing activities are responsible for their own voluntary code of practice the burden of monitoring and enforcing the code would be on these organisations;
direct costs would not be incurred by government where a voluntary code of practice is developed by organisations which undertake telemarketing activities; and
the development of a voluntary code of practice would be consistent with the recommendation of the Broadband Services Expert Group that the privacy of users of advanced networks be protected by developing a self-regulatory scheme for network participants within the framework of the Privacy Act.[81]

The disadvantages of the development of a voluntary code of practice under a self-regulatory scheme include:

where organisations which undertake telemarketing activities are established as judges in their own cause then it is likely that the balance of any scheme of self-regulation would favour these organisations rather than individuals;
the areas where individuals are most in need of protection under a regime of self-regulation are precisely the areas where self-regulation is least likely to be effective;
organisations undertaking telemarketing activities in relation to which individuals make serious complaints are unlikely to comply with a voluntary code of practice; and
only limited sanctions may be imposed upon organisations which do not comply with a voluntary code of practice when undertaking telemarketing activities.

The PAC considers that the development of a voluntary code of practice under a self-regulatory scheme would not resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Organisations which undertake telemarketing activities in relation to which individuals make serious complaints are unlikely to comply with a voluntary code of practice and only limited sanctions may be imposed upon organisations which do not comply with a voluntary code of practice.

10.2 Co-regulation

Co-regulation would involve the development of a voluntary or mandatory code of practice by government, consumer groups and organisations which undertake telemarketing activities.

The advantages of the development of a voluntary or mandatory code of practice under a co-regulatory scheme include:

the development of a voluntary or mandatory code of practice under a co-regulatory scheme may result in greater co-operation between government, consumer groups and organisations which undertake telemarketing activities in relation to monitoring and enforcing the code;
the involvement of organisation which undertake telemarketing activities in the development of a voluntary or mandatory code of practice may lead to greater compliance with the code by these organisations;
the reputation of organisations which undertake telemarketing activities would be enhanced by compliance with a voluntary or mandatory code of practice by these organisations;
a mandatory code of practice would clarify the rights of individuals and give them greater certainty when dealing with organisations which undertake telemarketing activities;
a voluntary or mandatory code of practice may be altered in accordance with the changing needs of individuals without the need for any or substantial legislative amendment;
a voluntary code of practice may be taken into account by tribunals and/or courts;
a mandatory code of practice would be taken into account by tribunals and/or courts with jurisdiction in relation to the code of practice;
effective sanctions may be imposed upon organisations which do not comply with a mandatory code of practice when undertaking telemarketing activities;
all State and Territory Fair Trading legislation with the exception of the Victorian legislation which it has been proposed to amend currently provides for the development of mandatory codes of practice;
the development of a voluntary code of practice under a co-regulatory scheme would be consistent with the recommendation of the Commonwealth Working Group on Direct Marketing that a voluntary co-regulatory approach should be followed in the first instance in relation to direct marketing issues; and
the development of a mandatory code of practice under a co-regulatory scheme would be consistent with the suggestion by the SCOCA Working Group on Direct Marketing that a code of practice for direct marketing may be developed by government, industry and consumer organisations and given legislative backing by State and Territory consumer protection legislation.[82]

The disadvantages of the development of a voluntary or mandatory code of practice under a co-regulatory scheme include:

organisations undertaking telemarketing activities in relation to which individuals make serious complaints are unlikely to comply with a voluntary code of practice;
only limited sanctions may be imposed upon organisations which do not comply with a voluntary code of practice when undertaking telemarketing activities;
the development of mandatory codes of practice under State and Territory Fair Trading legislation may require complicated negotiation between the States and Territories to ensure the adoption of uniform codes of practice throughout Australia;
the extent to which mandatory codes of practice developed under State and Territory Fair Trading legislation may regulate matters involving purely privacy issues requires further clarification; and
direct costs would be incurred by government where a voluntary or mandatory code of practice is developed under a co-regulatory scheme.

The PAC considers that the development of a voluntary code of practice under a co-regulatory scheme would not resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Organisations which undertake telemarketing activities in relation to which individuals make serious complaints are unlikely to comply with a voluntary code of practice and only limited sanctions may be imposed upon organisations which do not comply with a voluntary code of practice.

The PAC considers that a mandatory code of practice should be developed under a co-regulatory scheme to resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Organisations which undertake telemarketing activities would be involved in the development of a mandatory code of practice under a co-regulatory scheme and effective sanctions may be imposed upon organisations which do not comply with a mandatory code of practice.

10.3 Government Regulation

Government regulation would involve the development of a mandatory code of practice or the enactment of legislation by government.

The advantages of the development of a mandatory code of practice or the enactment of legislation by government include:

a mandatory code of practice or legislation would clarify the rights of individuals and give them greater certainty when dealing with organisations which undertake telemarketing activities;
a mandatory code of practice may be altered in accordance with the changing needs of individuals without the need for substantial legislative amendment;
a mandatory code of practice or legislation would be taken into account by tribunals and/or courts with jurisdiction in relation to the code of practice or legislation;
effective sanctions may be imposed upon organisations which do not comply with a mandatory code of practice or legislation when undertaking telemarketing activities;
legislation may provide individuals with statutory rights to obtain compensation from organisations which do not comply with such regulation when undertaking telemarketing activities; and
all State and Territory Fair Trading legislation with the exception of the Victorian legislation which it has been proposed to amend currently provides for the development of mandatory codes of practice.

The disadvantages of the development of a mandatory code of practice or the enactment of legislation by government include:

organisations which undertake telemarketing activities would not necessarily have the opportunity to be involved in the development of a mandatory code of practice or legislation by government;
substantial legislative amendment would be required to alter legislation in accordance with the changing needs of individuals;
the development of mandatory codes of practice under State and Territory Fair Trading legislation may require complicated negotiation between the States and Territories to ensure the adoption of uniform codes of practice throughout Australia;
the extent to which mandatory codes of practice developed under State and Territory Fair Trading legislation may regulate matters involving purely privacy issues requires further clarification;
the enactment of legislation by government may be considered to be over-regulation by government;
government would be required to monitor and enforce compliance with a mandatory code of practice or legislation by organisations which undertake telemarketing activities; and
the development of a mandatory code of practice or the enactment of legislation by government would result in direct costs being incurred by government.

The PAC considers that the development of a mandatory code of practice or the enactment of legislation by government would not be appropriate to resolve the privacy concerns of individuals relating to telemarketing activities for the following reasons. Organisations which undertake telemarketing activities would not necessarily have the opportunity to be involved in the development of a mandatory code of practice or legislation by government and substantial legislative amendment would be required to alter legislation which specifically applies to telemarketing activities.

In summary, the PAC considers that the development of a voluntary code of practice under a self-regulatory or co-regulatory scheme would not resolve the privacy concerns of individuals relating to telemarketing activities. The PAC considers that the development of a mandatory code of practice or the enactment of legislation by government would not be appropriate to resolve these privacy concerns of individuals. The PAC considers that a mandatory code of practice should be developed under a co-regulatory scheme to resolve these privacy concerns of individuals.

RECOMMENDATION:

The PAC recommends that a mandatory code of practice should be developed under a co-regulatory scheme to resolve the privacy concerns of individuals relating to telemarketing activities.

11. REGULATION CONTENT

The content of a mandatory code of practice developed under a co-regulatory scheme should address the privacy concerns of individuals relating to telemarketing activities. A mandatory code of practice should be consistent with the privacy principles contained in the Australian Privacy Charter and the information privacy principles contained in the Privacy Act to the extent that these principles are relevant. The PAC considers that a mandatory code of practice should require that organisations undertake telemarketing activities in accordance with the following principles.

Where an individual advises an organisation which undertakes telemarketing activities that he or she does not wish to be contacted by it then the organisation should not contact the individual for a defined time period. An organisation which undertakes telemarketing activities on behalf of other bodies should not contact an individual listed on its do-not-contact list even when undertaking telemarketing activities on behalf of a different body until the defined time period has elapsed since the individual advised the organisation that he or she did not wish to be contacted by it. The views expressed by the members of the PAC as to the length of the defined time period during which organisations undertaking telemarketing activities should not contact an individual who does not wish to be contacted ranged from 6 months to when the individual advises the organisation that he or she again wishes to be contacted by it.

Organisations which undertake telemarketing activities should maintain do-not-contact lists to comply with individuals' requests not to be contacted by these organisations. Organisations undertaking telemarketing activities would be expected to use their do-not-contact lists to remove the names of individuals who do not wish to be contacted from their in-house lists and from lists obtained from external sources. Organisations which undertake telemarketing activities would still be able to contact individuals listed on their do-not-contact list for purposes which do not involve telemarketing activities.

Organisations which undertake telemarketing activities should not use the telephone or ACE to contact individuals before 8 am or after 9 pm local time at the individual's location or on Christmas Day, Good Friday or Easter Sunday without their consent. Organisations which undertake telemarketing activities would not be subject to time restrictions when contacting individuals using facsimile machines, computers or any other equipment connected to a telecommunications network which does not cause the telephone to ring or otherwise interrupt individuals' activities. The consent of individuals to receive telephone calls from organisations undertaking telemarketing activities outside of these time restrictions may be express or implied. The consent of individuals may be implied in circumstances where they have a prior or existing relationship with the organisation responsible for contacting them.

When organisations undertaking telemarketing activities contact individuals they should clearly identify themselves, any other body that they represent and their purpose for contacting them. Individuals contacted should be provided with sufficient information to enable them to identify an organisation responsible for contacting them, any other body it represents and its purpose for contacting them. Organisations may clearly identify themselves by providing their name together with their address, telephone number, facsimile number and/or internet address.

Organisations which undertake telemarketing activities should not contact individuals more than once during any 30 day period for the same or a similar purpose without their consent. However, organisations would be able to contact individuals more than once during any 30 day period for the purpose of verifying information previously provided to them. Organisations would also be able to contact individuals more than once during any 30 day period for different purposes such as the marketing of dissimilar goods or services. The consent of individuals to be contacted by organisations more than once during any 30 day period for the same or a similar purpose may be express or implied. The consent of individuals may be implied in circumstances where they have a prior or existing relationship with the organisation responsible for contacting them.

When organisations undertaking telemarketing activities contact individuals they should at the request of an individual provide their telephone number and address, details of the source from which they have obtained the individual's contact details, the name of any industry or equivalent body to which they belong and the name of any body responsible for dealing with any complaint that the individual may have relating to the contact. Individuals contacted by organisations undertaking telemarketing activities should be able to obtain sufficient information to enable them to telephone or write to the organisation responsible for the contact. It should be possible for individuals to ascertain the source from which organisations have obtained their contact details so that they may approach the source to prevent the further release of their contact details unless the source is publicly available information such as the telephone directory. Individuals should be able to obtain the name of any industry or equivalent body to which an organisation belongs so that they are able to discuss any aspect of the contact with any such body. Organisations which contact individuals should provide the name of any body responsible for dealing with complaints so that individuals contacted are able to make any complaints that they may have to the appropriate body.

Organisations which undertake telemarketing activities using the telephone to contact individuals should release the line within 5 seconds of them hanging up the telephone or otherwise indicating that they require that their line be released. An individual's line should be released promptly so they may make and receive important telephone calls such as calls to and from emergency services.

Organisations undertaking telemarketing activities should not contact individuals using ACE to convey an artificial or prerecorded voice to them without their consent. There is greater potential for ACE which conveys an artificial or prerecorded voice to intrude into individuals' privacy as such equipment may be programmed to dial an unlimited number of lines. When individuals are contacted by organisations using ACE to deliver an artificial or prerecorded voice they are not likely to be able to take action to address the intrusive nature of the telephone call by being able to request information such as the name of any body responsible for dealing with any complaint that they may have in relation to the contact. The consent of individuals to be contacted by organisations using ACE to convey an artificial or prerecorded voice should be obtained by a live operator.

RECOMMENDATION:

The PAC recommends that a mandatory code of practice developed under a co-regulatory scheme should require that organisations undertake telemarketing activities in accordance with the following principles:

(1) where an individual advises an organisation which undertakes telemarketing activities that he or she does not wish to be contacted by it then the organisation should not contact the individual for a defined time period ranging from 6 months to when the individual advises the organisation that he or she again wishes to be contacted by it;

(2) an organisation should maintain an in-house do-not-contact list of individuals who have advised the organisation that they do not wish to be contacted by it;

(3) without an individual's consent an organisation should not use the telephone or ACE to contact the individual before 8 am or after 9 pm local time at the individual's location or on Christmas Day, Good Friday or Easter Sunday;

(4) when an organisations contacts an individual the organisation should clearly identify itself, any other body that the organisation represents and the organisation's purpose for contacting the individual;

(5) without an individual's consent an organisation should not contact the individual more than once during any 30 day period for the same or a similar purpose;

(6) when an organisation contacts an individual the organisation should at the request of the individual provide the following information:

(i) the organisation's telephone number and address;

(ii) details of the source from which the organisation has obtained the individual's contact details;

(iii) the name of any industry association or equivalent body to which the organisation belongs; and

(iv) the name of any body responsible for dealing with any complaint the individual may have relating to the contact.

(7) where an organisation uses the telephone to contact an individual the organisation should release the line within 5 seconds of the individual hanging up the telephone or otherwise indicating that he or she requires the organisation to release his or her line; and

(8) without an individual's consent an organisation should not contact the individual using ACE to convey an artificial or prerecorded voice.

12. IMPLEMENTATION OF REGULATION

A mandatory code of practice developed under a co-regulatory scheme may be implemented at Commonwealth level under telecommunications legislation, privacy legislation or trade practices legislation. Alternatively, a mandatory code of practice developed under a co-regulatory scheme may be implemented at State and Territory level under State and Territory Fair Trading legislation. The advantages and disadvantages of implementing a mandatory code of practice under telecommunications, privacy and trade practices legislation and State and Territory Fair Trading legislation are considered below.

12.1 Telecommunications Legislation

A mandatory code of practice may be implemented under the Telecommunications Act to regulate telemarketing activities.

The advantages of implementing a mandatory code of practice under the Telecommunications Act include:

it would ensure the adoption of a uniform approach throughout Australia to the regulation of telemarketing activities which may be undertaken in several States or Territories;
section 88 of the Telecommunications Act already protects the privacy of individuals to a certain degree by prohibiting the disclosure or use of specified information and documents by an employee or former employee of a carrier, a service provider or former service provider or an employee or former employee of a service provider except in specified circumstances; and
organisations which undertake telemarketing activities which involve the transmission of communications on behalf of another may already provide eligible services which would be subject to the conditions contained in the Service Providers Class Licence issued by AUSTEL under the Telecommunications Act.

The disadvantages of implementing a mandatory code of practice under the Telecommunications Act include:

substantial amendment would be required to be made to the Telecommunications Act to implement a mandatory code of practice under the Act; and
regulating telemarketing activities under the Telecommunications Act would be a technology specific solution with the focus being on the telecommunications network through which telemarketing activities are conducted rather than on the activities themselves.

The PAC considers that it would not be appropriate to implement a mandatory code of practice under the Telecommunications Act for the reason that a technology specific solution would result with the focus being on the telecommunications network. The PAC notes that if telemarketing activities are not effectively regulated under other legislation then further consideration may be required to be given to the possibility of regulating telemarketing activities under the post-1997 telecommunications legislation to take effect from 1 July 1997.

12.2 Privacy Legislation

A mandatory code of practice may be implemented under the Privacy Act to regulate telemarketing activities.

The advantages of implementing a mandatory code of practice under the Privacy Act include:

it would ensure the adoption of a uniform approach throughout Australia to the regulation of telemarketing activities which may be undertaken in several States or Territories; and
the approach would be consistent with the proposal by the Australian Law Reform Commission and the Administrative Review Council that the Privacy Act should be extended to cover the private sector.[83]

The disadvantages of implementing a mandatory code of practice under the Privacy Act include:

the information privacy principles contained in the Privacy Act do not directly address the privacy aspect of freedom from intrusion;
the Privacy Act was originally enacted to apply to the public sector;
the Privacy Act provides only limited protection where personal information is collected by organisations in the private sector;
substantial amendment would be required to be made to the Privacy Act to implement a mandatory code of practice under the Act;
the extent of the Commonwealth's constitutional power to legislate with respect to privacy for the private sector requires further clarification; and
if the Privacy Act was amended to apply to organisations in the private sector which undertake telemarketing activities then it would lead to an anomaly if other private sector organisations were not subject to the provisions of the Act.

The PAC considers that it would not be appropriate to implement a mandatory code of practice under the Privacy Act for the reason that it would lead to an anomaly if other private sector organisations were not subject to the provisions of the Act.

12.3 Trade Practices Legislation

A mandatory code of practice may be implemented under the Trade Practices Act to regulate telemarketing activities.

The advantages of implementing a mandatory code of practice under the Trade Practices Act include:

telemarketing activities are a subgroup of direct marketing activities which are already regulated to a certain degree under the Trade Practices Act;
it would ensure the adoption of a uniform approach throughout Australia to the regulation of telemarketing activities which may be undertaken in several States or Territories;
a technology neutral solution would result with the focus being on telemarketing activities rather than the telecommunications network through which the activities are conducted; and
the approach would be consistent with the commitment of the Federal Government to technology neutrality in its communications policy as a whole.[84]

The disadvantages of implementing a mandatory code of practice under the Trade Practices Act include:

the Trade Practices Act does not apply to telemarketing activities undertaken by organisations which are not corporations or telemarketing activities undertaken other than in the course of trade or commerce;
the consumer protection provisions contained in the Trade Practices Act are not directed towards protecting the privacy of individuals; and
substantial amendment would be required to be made to the Trade Practices Act to implement a mandatory code of practice under the Act.

The PAC considers that it would not be appropriate to implement a mandatory code of practice under the Trade Practices Act for the reason that the Act does not apply to telemarketing activities undertaken by organisations which are not corporations or telemarketing activities undertaken other than in the course of trade or commerce.

12.4 State and Territory Fair Trading Legislation

A mandatory code of practice may be implemented under State and Territory Fair Trading legislation.

The advantages of implementing a mandatory code of practice under State and Territory Fair Trading legislation include:

telemarketing activities are a subgroup of direct marketing activities which are already regulated to a certain degree under State and Territory Fair Trading legislation;
all State and Territory Fair Trading legislation, with the exception of the Victorian Fair Trading legislation which would require amendment, currently provides for the development of mandatory codes of practice;
a technology neutral solution would result with the focus being on telemarketing activities rather than the telecommunications network through which the activities are conducted;
the States and Territories would have the power to legislate with respect to privacy in areas not covered by Commonwealth legislation;
the approach would be consistent with the commitment of the Australian Government to technology neutrality in its communications policy as a whole;[85] and
the approach would be consistent with the suggestion by the SCOCA Working Group on Direct Marketing that a code of practice for direct marketing may be given legislative backing by State and Territory consumer protection legislation.[86]

The disadvantages of implementing a mandatory code of practice under State and Territory Fair Trading legislation include:

State and Territory Fair Trading legislation does not apply to telemarketing activities which are undertaken other than in the course of trade or commerce;
the consumer protection provisions contained in State and Territory Fair Trading legislation are not directed towards protecting the privacy of individuals;
the extent to which State and Territory Fair Trading legislation may regulate matters involving purely privacy issues requires further clarification;
complicated negotiations between the States and Territories may be required to ensure the adoption of a uniform approach throughout Australia to the regulation of telemarketing activities which may be undertaken in several States or Territories; and
State and Territory based Fair Trading Offices may not be prepared or have sufficient resources and funding to pursue interstate organisations undertaking telemarketing activities within their jurisdiction.

The PAC considers that a mandatory code of practice should be implemented under State and Territory Fair Trading legislation for the following reasons. Telemarketing activities are a subgroup of direct marketing activities, all State and Territory Fair Trading legislation, with the exception of the Victorian Fair Trading legislation which would require amendment, currently provides for the development of mandatory codes of practice and a technology neutral solution would result.

In summary, the PAC considers that it would not be appropriate to implement a mandatory code of practice under the Telecommunications Act, the Privacy Act or the Trade Practices Act but that a mandatory code of practice should be implemented under State and Territory Fair Trading legislation.

RECOMMENDATION:

The PAC recommends that a mandatory code of practice developed under a co-regulatory scheme should be implemented under State and Territory Fair Trading legislation.

13. PUBLIC AWARENESS

Public awareness in relation to telemarketing activities may be raised by the dissemination of information to individuals and to organisations which undertake these activities. Raising public awareness in relation to telemarketing activities may partially assist in resolving the privacy concerns of individuals relating to these activities. The advantages and disadvantages of raising public awareness in relation to telemarketing activities are discussed below.

The advantages of raising public awareness in relation to telemarketing activities include:

raising public awareness would raise awareness of fair and ethical practices relating to telemarketing activities;
raising public awareness would encourage organisations which undertake telemarketing activities to adopt fair and ethical practices;
raising public awareness would clarify the rights and obligations of individuals and the rights and obligations of organisations which undertake telemarketing activities in relation to their dealings with each other;
raising public awareness would give individuals greater certainty when dealing with organisations which undertake telemarketing activities;
raising public awareness may reduce the need for government intervention as informed individuals would be in a better position to deal with approaches from organisations undertaking telemarketing activities; and
informed individuals are likely to bring to the government's attention any problems they encounter in their dealings with organisations undertaking telemarketing activities.

The disadvantage of raising public awareness in relation to telemarketing activities is that:

raising public awareness would result in direct costs being incurred by government.

The PAC considers that public awareness in relation to telemarketing activities should be raised through use of AUSTEL's existing procedures for the distribution of general telecommunications information to the public for the following reasons. Raising public awareness would raise awareness of fair and ethical telemarketing practices and clarify the rights and obligations of individuals and the rights and obligations of organisations which undertake telemarketing activities in relation to their dealings with each other.

RECOMMENDATION:

The PAC recommends that public awareness in relation to telemarketing activities should be raised through use of AUSTEL's existing procedures for the distribution of general telecommunications information to the public.

14. CONCLUSION

Individuals continue to make complaints concerning telemarketing activities which they consider to be an intrusive invasion of their privacy. The areas of law relevant to a consideration of the freedom from intrusion issues relating to telemarketing activities are telecommunications law, privacy law and trade practices and State and Territory Fair Trading laws. The PAC considers that section 88 of the Telecommunications Act does not adequately address the privacy concerns of individuals relating to telemarketing activities undertaken by carriers and service providers and that AUSTEL does not have sufficient functions or powers to resolve these privacy concerns of individuals. The PAC considers that neither the Privacy Act, the Trade Practices Act or State and Territory Fair Trading legislation addresses the privacy concerns of individuals relating to telemarketing activities.

In Australia the five privacy protections which to varying degrees address the privacy concerns of individuals relating to telemarketing activities are ADMA's Standards of Practice, ADMA's Preference Scheme, the ATA's review of membership procedure, AUSTEL's "junk fax" register and the Australian Privacy Charter. Additionally, Australia has ratified the ICCPR which may provide a basis for the Federal Government exercising the external affairs power contained in the Commonwealth Constitution to legislate to protect the privacy of individuals from intrusion by organisations in both the public and private sectors undertaking telemarketing activities.

Suggested non-regulatory solutions to resolve the privacy concerns of individuals relating to telemarketing activities include a directory marking scheme, the establishment of a preference list, Caller ID technology, distinctive ring technology, answering machines or services, inbound call blockers and silent line telephone numbers. The PAC considers that neither a directory marking scheme or the establishment of a preference list would resolve these privacy concerns of individuals and that Caller ID technology, distinctive ring technology, answering machines or services, inbound call blockers and silent line telephone numbers would only partially assist in resolving these privacy concerns of individuals.

In summary, the recommendations of the PAC to resolve the privacy concerns of individuals relating to telemarketing activities are as follows:

a mandatory code of practice should be developed under a co-regulatory scheme to resolve the privacy concerns of individuals relating to telemarketing activities;
a mandatory code of practice developed under a co-regulatory scheme should require that organisations undertake telemarketing activities in accordance with the following principles:
(1) where an individual advises an organisation which undertakes telemarketing activities that he or she does not wish to be contacted by it then the organisation should not contact the individual for a defined time period ranging from 6 months to when the individual advises the organisation that he or she again wishes to be contacted by it;

(2) an organisation should maintain an in-house do-not-contact list of individuals who have advised the organisation that they do not wish to be contacted by it;

(3) without an individual's consent an organisation should not use the telephone or ACE to contact the individual before 8 am or after 9 pm local time at the individual's location or on Christmas Day, Good Friday or Easter Sunday;

(4) when an organisation contacts an individual the organisation should clearly identify itself, any other body that the organisation represents and the organisation's purpose for contacting the individual;

(5) without an individual's consent an organisation should not contact the individual more than once during any 30 day period for the same or a similar purpose;

(6) when an organisation contacts an individual the organisation should at the request of the individual provide the following information:

(i) the organisation's telephone number and address;

(ii) details of the source from which the organisation has obtained the individual's contact details;

(iii) the name of any industry association or equivalent body to which the organisation belongs; and

(iv) the name of any body responsible for dealing with any complaint the individual may have relating to the contact.

(7) where an organisation uses the telephone to contact an individual the organisation should release the line within 5 seconds of the individual hanging up the telephone or otherwise indicating that he or she requires the organisation to release his or her line; and

(8) without an individual's consent an organisation should not contact the individual using ACE to convey an artificial or prerecorded voice;
a mandatory code of practice developed under a co-regulatory scheme should be implemented under State and Territory Fair Trading legislation; and
public awareness in relation to telemarketing activities should be raised through use of AUSTEL's existing procedures for the distribution of general telecommunications information to the public.

ATTACHMENT A

AUSTRALIAN DIRECT MARKETING ASSOCIATION LTD

Level 7, 22-30 Bridge Street, Sydney NSW 2000

Telephone: (02) 247 7741 Fax: (02) 247 4919

STANDARDS OF PRACTICE

WHEN TELEMARKETING

The purpose of this voluntary "Standards of Practice" is to set down guidelines for use in carrying on business where telemarketing techniques are used to impart or obtain information, promote products or services, arrange sales calls or other telemarketing functions and/or receiving orders in quantity and/or fulfilling those orders.

What distinguishes a voluntary from an imposed code of standards is that all agree to support it in spirit and not to treat its provisions as obstacles to be circumvented by legal ingenuity. ADMA, in seeking compliance with these Standards, will therefore pay as much or more regard to the spirit shown towards the consumer than to the literal reading of any specific provisions of these Standards.

Those who subscribe to the "Standards of Practice" therefore acknowledge an obligation to ensure that any telemarketing with which they are associated is consistent with high standards of integrity, that offers are honest and intelligible, that service matches the offer and that products match claims.

They also acknowledge an obligation to be conscious at all times of the need to respect individual privacy and personal notions of taste.

PART A

IN DEALING WITH THE CUSTOMER

1. THE OFFER

(a) The first duty of every telemarketer is to express himself clearly and without ambiguity so that the recipient should know exactly what he is being offered and to what he is committing himself by accepting the verbal offer. In particular, the telemarketer will be scrupulous in giving accurate details as regards quantity, quality, supply, price and terms of business.

(b) The telemarketer shall not make false or misleading claims in respect of his offer whether by words or any other means, nor make comparisons in price or quality that are misleading.

(d) Fictitious or misleading testimonials shall not be used, nor shall testimonials given by members of the advertiser's staff, advertising agency or others associated with the advertiser unless their interest is explicitly declared.

(e) Advertisers must be able to produce original evidence in support of testimonial claims.

(f) The offering of goods on approval must be honoured in the ready acceptance of returned goods within the period specified in the solicitation, and this period shall be calculated from the date on which the customer may reasonably be assumed to have received the goods. Where possible the supplier of goods should provide an easy mechanism or instructions for the return of goods.

(g) The term "free examination" shall not be used except where the supplier is prepared to accept the responsibility for the cost of returning the goods.

(h) Where an offer provides for payment by instalments, the number, amount, and frequency must clearly be stated, as well as the total instalment price if this differs from the cash price.

(i) Telemarketing offering courses of instruction in trades or subjects leading up to professional technical examinations shall not imply the promise of employment or remuneration alleged to be open to those taking such courses; neither shall it offer unrecognised "degrees" or qualification.

(j) Scripts should not be framed in a manner as to exploit the superstitious or play on fear to induce people to purchase goods or services.

(k) Telemarketers shall observe the following practices when making offers to persons or organisations who have no existing relationship with the advertiser responsible for the call campaign:-

(i) All telephone contacts should be made during reasonable hours. Reasonable hours could be considered as between 8 am. and 9 pm. and not on Christmas Day, Good Friday or Easter Sunday. Calls could be made outside these hours if the advertiser has justifiable reason to believe that such other times would be more convenient and acceptable to the recipient.

(ii) The caller should appreciate that he may have interrupted a meal, shower, etc. and freely and promptly offer to call back at a more convenient time.

(iii) The caller should provide the person called with a clear opportunity to accept or decline the invitation or offer, eg., consent to mail material or send out a representative should not be assumed.

(iv) The caller should courteously and promptly accept a refusal of the invitation or offer, thank the person called for his time and hang up.

(v) The caller should answer any enquiries concerning the product, service or the solicitation and also truthfully answer any enquiries concerning the source of the potential customer's or donor's name and/or telephone number and any other requested information regarding the telephone call. If the answers to enquiries are not known at the time the caller should offer to find out the answer and telephone the prospective customer back.

(vi) The caller shall not make telephone calls in the guise of research or a survey when the intent is to sell or to solicit.

(vii) The telemarketer shall not utilise any form of recorded message unless the pcrson called can clear the line promptly at wish. At all times the advertiser shall ensure that automatic calling or messages conform to the policies of Telecom.

2. IDENTIFICATION

(a)

(i) The name of the advertiser and a geographic address at which he can be contacted must be given in full in advertisements which are printed or televised. If a newspaper, magazine or post office box number is used, a full geographic address for the advertis