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21 October 2009

In Response to the Department of Broadband, Communications and the Digital Economy's Discussion Paper on Do Not Call Register Statutory Review

Submission by the Australian Privacy Foundation

About the Australian Privacy Foundation 

1.	The Australian Privacy Foundation is the main non-governmental organisation dedicated to protecting the privacy rights of Australians. The Foundation aims to focus public attention on emerging issues which pose a threat to the freedom and privacy of Australians. Since 1987, the Foundation has led the defence of the right of individuals to control their personal information and to be free of excessive intrusions. The Foundation uses the Australian Privacy Charter as a benchmark against which laws, regulations and privacy invasive initiatives can be assessed.  For information about the Foundation and the Charter, see www.privacy.org.au 

General comments

2.	In 2005, we published a submission in support of the initiative of the then Department of Communications, Information Technology and the Arts of proposing a Do Not Call Register. We observed that such a Register would be an important step in enhancing the protection of privacy, and a strong regulatory approach is likely to be the only effective solution.

3.	On the whole, the Do Not Call Register has worked well, and has benefitted Australia. The Australian Privacy Foundation supports the continued operation of a Do Not Call Register. However, as is clear from the comments below, there is scope for improvements. 

Opt-in, not out (Question 3.1.1) 

4.	Question 3.1.1 is whether there are “ways that the opt-out structure of the scheme could be improved”. This question is not broad enough, as is reflected in our answer. In our view, the opt-out structure would be improved if it was replaced with an opt-in structure. The regulation of telemarketing involves the balancing of at least two interests, the individual’s right to privacy, and the rights of legitimate businesses and organisations to access the community for commercial and non commercial reasons. However, while the first of these rights is established both through international and domestic instruments, there is no specific right to use personal information to directly approach individuals. In addition, there are plenty of other ways of advertising. Thus, it can certainly not be suggested that we here are balancing two equal rights. In other words, the starting point is that the privacy interests involved ‘trumps’ the commercial interest involved. In light of that, the only way priority can reasonably be given to the commercial interests is where individuals have expressly opted in favour of those commercial interests by opting-in to receiving telemarketing calls.
5.	Further, as we stressed in our 2005 submission, “the criticism of opt-in is only valid if such an approach is applied harshly – if a similar regime to the Spam Act was adopted, this would leave most organisations with existing relationships with customers free to operate under an opt-out regime”.
6.	To summarise, we submit that an opt-in scheme would better serve the key objectives of the Act.

Consent (Questions 3.2.1 & 3.2.2)

7.	As envisaged in the Discussion paper, it would be valuable for the Act to contain a provision making clear that, consent (whether express or inferred) can be withdrawn at any time. 

Registration period (Question 3.3.1)

8.	The current approach of giving a three year life-span to registrations is inappropriate. It does not cater for any of the three key objectives of the Act. Indeed, it works contrary to the aim of reducing “the inconvenience and intrusiveness of telemarketing calls” as most people are unaware of the three year life-span. Further, it also undermines the third key objective of establishing “an effective complaints handling mechanism”. When a person starts receiving telemarketing calls due to the fact that her/his registration has expired, she/he will complain to the ACMA. Consequently, the ACMA will be burdened by a large number of ‘false complaints’ – complaints that will detract from the attention that the ACMA can devote to legitimate complaints. Finally, it can hardly be in the telemarketers’ interest to spend their time calling people who expressly do not want to be contacted. Thus, the three year life-span rule does not serve telemarketers either.

9.	The concern about the list becoming outdated could be addressed by requiring telecommunications providers to advise where a number has been given up or re-assigned.

10.	To summarise, we submit that the three year life-span to registrations should be abandoned in favour of registration being effective until withdrawn or until such a time the phone number is given up or reassigned to a new person.

Exemptions (Question 3.4.1)

11.	The rules regulating exemptions are of the greatest importance as they risk seriously undermining the value of the Do Not Call Register.
 
12.	In our view, the Register ought to be sophisticated enough to allow selective registration. In other words, a registrant should be provided with the choose to register to avoid calls from e.g. religious organisations, charities and political parties and candidates, and still allow for calls from e.g. existing business contacts, government bodies and market researchers

13.	Under the more sophisticated scheme outlined above, there is simply no reason to provide for exemptions to the Do Not Call Register. This reasoning is in line with the above observation as to the superiority of individuals’ well established right to privacy over the purported “rights of legitimate businesses and organisations to access the community for commercial and non commercial reasons”. Further, it is consistent with the view that individuals are quite capable of deciding for themselves whether they want to receive the discussed types of calls, and that none of the purported public interests put forward are strong enough to ‘trump’ an individual’s clearly expressed wish not to be disturbed.

14.	In addition to the above, there are several other reasons why exemptions are not necessary, and we submit that exemptions are inappropriate even in the absence of the more sophisticated model outlined above. First, there are other less intrusive means by which businesses and organisations can approach people. Second, people always have the right to say ‘no thanks’ once the call is made anyhow. Thus, the Register simply constitutes a means for people to say ‘no thanks’ before the harm is done. This observation is perhaps particularly relevant in relation to research calls (which is the call type that may be most heavily supported by a ‘public interest’ argument) – people have the right to decline taking part in the research, and the option of exercising that right through a specific choice on a Do Not Call Register cannot be said to be against the ‘public interest’.

15.	To summarise, we submit that the Register ought to be sophisticated enough to allow selective registration, and that, with such a scheme in place, there would be no reason to provide for exemptions to the Do Not Call Register. We also submit that the exemptions ought to be removed in any case. 

Research calls (Question 3.5.1)

16.	Question 3.5.1 asks whether ‘research calls’ should be defined in the Act to clearly distinguish between calls with a commercial purpose and calls with a research purpose.

17.	We note that constructing such a definition may be difficult. To the extent that the Act is to exclude ‘research calls’ (see our views above), we suggest that the better approach is to make clear that, any call that contains an express or implied commercial element falls within the regulation of the Register.

Other issues (Question 5.1.1)
 
18.	As we noted in our 2005 submission, it is undisputable that telemarketing aimed at businesses and organisations, rather than at consumers, also can be a problem. This is perhaps particularly true for small businesses or organisations, but may also be so in relation to larger corporations and organisations. Consequently, where a corporation/organisation wishes to be included on the Do Not Call Register, in the full knowledge that such an approach may cause them to miss out on valuable business proposals, their wish ought to be respected.

For further information contact: 

Dr Dan Svantesson
Vice-Chair
E-mail: vicechair2@privacy.org.au 
APF Web site: http://www.privacy.org.au