On 29 March 2017, the Telecommunications (Telemarketing and Research Calls) Industry Standard 2017 (Standard) was introduced to replace the former 2007 version. The new Standard now requires express consent to call outside prescribed times, more detailed information to be provided at the start of a call and increased calling line identification requirements.
Background to the changes
The repeal of the Telemarketing and Research Industry Standard 2007 follows submissions to a consultation paper issued by the Australian Communications and Media Authority (ACMA) and a review of the operation and effectiveness of the Standard in the current telecommunications environment.1 The new Standard intends to provide greater clarity around the minimum standards set for the industry and to enhance community safeguards around the making of telemarketing and research calls.2
The Standard is made pursuant to section 125A of the Telecommunications Act 1997 (Cth) (Telecommunications Act) and, as was the case with the previous Standard, applies to all businesses, entities and individuals that make or intend to make telemarketing and research calls, including entities exempt under the Do Not Call Register Act 2006 (Cth) (DNCR Act). The Standard outlines the requirements for when telemarketing and research calls can be made, specific information that must be provided during the call, when the call must be terminated and details around the use of calling line identification (CLI).
Which calls does the Standard apply to?
The Standard applies to ‘telemarketing calls’ as defined by the Telecommunications Act. This includes:
- ‘research calls’ to conduct opinion polling or questionnaire-based research;
- calls to offer, advertise or promote the supply (or a supplier) of goods or services, an interest in land or a business or investment opportunity; or
- calls to solicit donations.
What has changed?
Express consent now required for calls made outside permitted hours
Under both the current and previous Standards, telemarketing and research calls can only be made during prescribed permitted times. These times are weekdays between 9am and 8pm (or 8.30pm for research calls) and 9am and 5pm on weekends. Telemarketing calls cannot be made on Sundays. Calling times are based on the time at the usual residential address of the person to whom the phone number belongs.
The new Standard now requires the express consent of the account-holder (or their nominee) in advance if a telemarketing or research call is made outside these permitted times. The previous Standard did not differentiate between inferred and express consent. This change now requires a clear indication of a consumer’s willingness to receive telemarketing or research calls outside the permitted times.
Name of the caller’s employer now required at the start of a call
In response to ACMA’s analysis that a significant number of consumers were uncertain as to why they received a call and the identification of the caller, the new Standard now provides that more specific information must be given at the commencement of a call. For both telemarketing and research calls, the caller must give the following information to the call recipient at the start of the call:
- the given name of the caller (except where there is a recorded or synthetic voice);
- if the caller is making the call as an employee, the employer’s registered business name (or if not available, a name by which the employer can be identified);
- if the caller is self-employed, their registered business name (if applicable) or a name by which the employer can be readily identified;
- the purpose of the call (for calls with a dual-purpose, both purposes need to be stated);
- if a telemarketing call is being made on behalf of another business (e.g. by a third party call centre), the caller must identify the name of that business (i.e. the call centre’s customer); and
- if, for a research call, providing the business or company name would reveal the name of the person that caused the call to be made (for example, a company conducting research for itself), that information does not need to be given at the start of the call provided the caller gives this information when asked by the call recipient or before the end of the call (unless the call recipient ends the call before that information can be provided).
Previously, some of this information only needed to be provided to the call recipient on request. These strengthened requirements are designed to increase the transparency of the call by enabling call recipients to more easily identify legitimate calls.
The Standard has also clarified that the above information does not need to be provided if the call recipient ends the call before this information can be provided or where the caller terminates the call within 5 seconds without speaking to the call recipient.
For both telemarketing and research calls, information regarding the contact details of the employer (or the caller if self-employed), the business that caused the call to be made and the person responsible for dealing with inquiries and complaints can be provided upon request. Contact details now also include web addresses, provided the web address makes available a customer contact facility, street, postal or email address.
The new Standard removes the requirement of the caller to give, within a reasonable time not exceeding 7 days, details of where the caller obtained the recipient’s phone number, the name of the person the call was intended for or the name and contact details of any entity that disclosed to the caller the phone number and/or name of the person for whom the call was intended. ACMA’s analysis of consumer complaints suggested that this requirement of itself did not provide an effective consumer protection and greater protection is offered under the Australian Privacy Principles in the Privacy Act 1988 (Cth).
Enhanced caller ID requirements
Consistent with the previous Standard, a caller must ensure that calling line identification (caller ID) is enabled at the time that the call is made. The new Standard now specifies that the telephone number for return contact must remain available for at least 30 days from when the original call was made. Further, the Standard specifically requires that the following information be available when a return call is made:
- the name of the caller’s employer (or the caller where self-employed);
- the purpose of the call; and
- for telemarketing calls, who caused the call to be made.
What should telemarketers, researchers and call centres be doing?
Call centres and businesses that make their own telemarketing and research calls should ensure their calling procedures and scripts are updated to reflect the new requirements. This includes checking consent procedures and record-keeping and maintenance of telephone numbers used to make telemarketing and research calls.
Businesses that engage call centres to make telemarketing and research calls should revisit their contracts with those call centres to ensure that those contracts are consistent with the new Standard. It would also be advisable to specifically require the call centre to comply with the Standard. Recent ACMA enforcement action in relation to the DNCR Act has emphasised the importance of both contractual arrangements with call centres, and monitoring to ensure compliance.3 On a number of occasions, ACMA has held the company engaging the call centre responsible for DNCR Act breaches (sometimes in addition to the call centre itself).
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2020