$25,200 For Expired Consent
Window and door glazing company Eco Star was fined $25,200 for calling numbers on the Do Not Call Register. Eco Star had initially obtained consent for its telemarketing activities, but the consent had lapsed for a majority of the numbers called.
jbho: a reminder that consent to call numbers on the DNC – even if express – expires after three months. Per the Do Not Call Register Act 2006, Schedule 2 – Consent, 3 Duration of express consent:
For the purposes of this Act, if:
(a) express consent is given; and
(b) the consent is not expressed to be for a specified period or for an indefinite period;
the consent is taken to have been withdrawn at the end of the period of 3 months beginning on the day on which the consent was given.
$21,600 For Cold Calling
The ACMA cited Allied Construction as part of its crackdown on telemarketing in the solar industry. The company has paid a $21,600 infringement notice for calling numbers on the Do Not Call Register (DNCR).
jbho: consent! consent! consent!
$10,800 For Unsolicited Telemarketing To Numbers On The Do Not Call Register
Instyle Solar allegedly made calls soliciting its products and services to numbers compiled through (undisclosed) sources, and purchased from data brokers – many numbers which were on the National Do Not Call Register. Since opt-in consent was required to contact such numbers, and Instyle failed to produce evidence of such consent, a monetary penalty of $10,800 was assessed.
jbho: another reminder that if you are going to source data from third parties, make sure to perform due diligence to ensure the data is collected in a fair and lawful manner. Additionally, get representations and warranties that you have consent to use that data for the desired purposes, and make sure you have well-constructed contractual agreements to make sure vendor obligations are clearly defined, and liability is appropriately distributed.
Note this is part of the ACMA’s announced effort to crack down on the solar power industry’s dubious marketing practices.
$360,000 For Failing To STOP
The ACMA fined telco provider TPG Internet $360,000 for continuing to text individuals who had opted-out. The ACMA investigation, launched after receiving several complaints to the spam reporting centre, indicated there was a breakdown in the TPG opt-out systems. TPG cooperated with the ACMA during the investigation, admitted the breach, and has taken steps to remedy the causes of the breaches. However the infraction was grave enough that the ACMA still issued a fine.
jbho: not much on details provided, but a reminder to test your systems regularly to ensure they are honoring opt-outs – particularly when updating systems or changing vendors. In my experience, it’s during those events that the most errors happen.
Can’t Put Contact Info Two Clicks Away
Online customer acquisition and lead generation firm ValueAd Marketing VAM allegedly sent 24,738 SMS over a one-week period in November 2016. The texts were sent with consent and contained an opt-out, but failed to include contact info on the sender. Contact details could only be accessed by clicking through to a survey, and then following another link to those details.
VAM amended its practices during the course of the ACMA investigation, and is now in compliance with the Spam Act. The ACMA stated it will continue to monitor any complaints against VAM.
jbho: don’t forget the technical/procedural requirements in managing your campaigns.
ACMA Priorities for 2017-2018
The Australian Communications and Media Authority (ACMA) has released its enforcement priorities for the next year. In addition to general consent-based marketing practices, the ACMA will focus on two areas with a high number of complaints:
• Solar industry-related telemarketing
• Registered charities
The announcement provides links to the relevant telemarketing and anti-spam rules.
jbho: in case you missed it.
$39,600 for Breaching the Spam Act
eMarketer Upside.Digital allegedly sent marketing emails without appropriate consent. Upside also failed to provide evidence of consent for emails it outsourced to third parties. Additionally, emails allegedly did not contain contact details of clients upon whose behalf the mails were sent.
In addition to the $39,600 fine, Upside has agreed to implement a compliance program to avoid future breaches of the Spam Act.
jbho: Always critical to keep good records of consent, and perform due diligence on vendors who will obtain consent on your behalf. And don’t forget the procedural requirements around email construction
It appears Upside is already building its compliance program, and providing guidance to its clients on its website. http://www.upsidedigital.com.au/blog/upside-digitals-response-to-the-acma-findings/
Trade School Warned For Spam Texts
Vocational education providers Careers Australia allegedly sent unsolicited text messages that failed to include clear and accurate sender information (identity and contact details), and failed to provide an unsubscribe mechanism.
jbho: They may have gotten off with just a warning (for now) as it appears the company is experiencing other troubles. According to the Sidney Morning Herald, the school has lost its federal funding, leaving 15,000 students and 1000 staff in limbo.
Changes To Telemarketing Rules Now In Effect
The ACMA has implemented the changes to the Telemarketing Standard. Most proposals (see below) were adopted, including:
- Express consent required to call outside restricted times/dates
- Caller name must be announced at start of call
- name of the business (rather than the name of the person calling)
- Caller contact info must be provided on the call
- eliminates the former 7 day response period
- for robocalls, a mechanism must be enabled to allow the called party to get the information (e.g., key press)
- Caller ID displayed numbers must remain contactable for 30 days after an outbound call was made
- when contacted, caller contact information must be made available without unreasonable delay
- Unwanted calls must be immediately disconnected
- note: proposed examples detailing ways a call recipient might indicate a call is unwanted were not adopted
jbho: nothing earth shattering, so shouldn’t be too impactful. A reminder to update your scripts, knowledge bases, etc., as well as button up you calling processes.
Proposed Changes To Telemarketing Rules
The Australian Communications and Media Authority (ACMA) has proposed changes to the Telemarketing and Research Industry Standard. The proposal would change the name of the standard to the “Telecommunications Industry Standard,” and would clarify:
- Call time restrictions do not apply where express consent has been obtained
- Name of the business must be provided on all calls (rather than the name of the person calling)
- All name & contact info must be provided on the call (eliminates the former 7 day response period)
- now includes a web address
- Name & contact info doesn’t have to be provided where the caller hangs up before the info can be given
- provides examples of the ways in which a call recipient might indicate that they do not wish for the call to continue
- Any number transmitted via caller ID must remain contactable for 30 days after the outbound call was made
Comments must be submitted by Friday, 9 December 2016.
jbho: as a reminder, call times are restricted to 9am – 8pm M-F, 9am – 5pm Sat, and no calls on sundays, or holidays (New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Christmas Day, Boxing Day or a holiday on a weekday given in lieu of a public holiday).
Easymeals Penalised For Overcooked Telemarketing
Portion controlled, prepared food provider Easymeals was fined $13,600 for making telemarketing calls outside permissible hours, and continuing to call after individuals asked to be opted-out.
Since the ACMA’s investigation, Easymeals has taken a number of steps aimed at ensuring compliance.
jbho: make sure you have consent, keep your time zones straight, and if someone asks you to stop calling, STOP CALLING.
Reminder That Corporate Officers Can Be Held Personally Liable For Unsolicited Marketing
The ACMA won a $325,000 judgement against Getaway Escapes for making unsolicited telemarketing calls to numbers on the National Do Not Call List (DNCL), and for failing to send valid caller ID information to called parties. The company was ordered to pay penalties of $150,000 for each violation ($300,000 in total), and the company’s Director was assigned an additional $12,500 in penalties for each violation ($25,000 in total).
The court also enjoined the director from operating any business involved in unsolicited telemarketing.
jbho: maybe best to just get consent and skip the cold calling?
You Are Responsible for Emails Sent By Your Vendor
ESP J&L Mainwaring (aka “oneofthebest.com”) was fined $21,600 for sending unsolicited emails. Mainwaring failed to provide the statutorily required contact information of the “authorized senders,” and was unable to produce records of consent to send the mails in the first place.
jbho: a reminder that both parties — the vendor that physically conveys the mail and the authorizer/initiator of an email – are responsible for compliance with the Spam Act.