The Legal Requirements and Regulations Associated with Fax marketing
The ACMA is responsible for overseeing compliance with the rules set out in the Do Not Call Register Act 2006 (the Act), the Telemarketing and Research Industry Standard 2007, and the Fax Marketing Industry Standard 2011 (collectively referred to as the DNCR legislation).
This information sheet sets out the ACMA's approach to compliance with the DNCR legislation and outlines what fax marketers can expect when the ACMA receives a complaint about a fax that has been sent.
Rules for fax marketing
Among other things, the Act sets out two key rules for fax marketers:
a fax marketer must not send a marketing fax to a number on the Do Not Call Register (the register), unless consent has been obtained for the fax
a fax marketer must ensure that all agreements for the purpose of sending marketing faxes include an express provision that requires compliance with the Act.
Responsibility for marketing faxes sent to numbers on the register rests with both the fax marketer and any person it engages to send marketing faxes on its behalf (such as a fax advertising business that is employed to design a marketing fax).
Often marketing faxes are sent in bulk on behalf of a business or entity by separate fax broadcasters. Generally, if a fax broadcaster is merely providing the mechanism by which the fax marketer can send marketing faxes in bulk, the fax broadcaster will not be a 'participant' in the fax marketing industry and the Act will not apply to them.
The Fax Marketing Industry Standard sets minimum standards of conduct in four main areas:
restricting the hours/days when marketing faxes may be sent
requiring the provision of specific information on a marketing fax
requiring an opt-out provision on a marketing fax
restricting the frequency that marketing faxes may be sent in a particular period to a particular number.
The Telemarketing and Research Industry Standard applies to any person or business intending to make telemarketing or research calls, including those that are exempt from the Act.
The Fax Marketing Industry Standard applies to all participants in the fax marketing industry including those that are exempt from the Act.
Further information on the rules for fax marketing can be found at www.acma.gov.au/donotcall.
The ACMA's approach to compliance
The ACMA adopts a three staged approach to overseeing compliance with the DNCR legislation. This approach comprises two facilitation stages: 'advise' and 'warn', and one formal stage: 'investigate'. In the first instance, the ACMA will seek to resolve a matter through facilitation. However, if this is unsuccessful or inappropriate, the ACMA will take appropriate investigatory action. The ACMA may also act more urgently on a case-by-case basis.
Facilitation—what to expect
The first stage of facilitation ('advise') commences when the ACMA receives its first complaint about a fax marketer. At this time, the ACMA will write to the fax marketer to inform it that a complaint has been received and to provide information about the DNCR legislation and alleged fax. The letter recommends the fax marketer review its fax marketing activities.
Monitoring of the fax marketer for compliance with the DNCR legislation then commences.
Escalation to the next facilitation stage ('warn') usually occurs where a fax marketer receives five or more complaints within any 180 day period. Where this occurs, a compliance officer from the ACMA will contact the fax marketer, usually by telephone, to advise that further complaints have been received and to discuss the steps the fax marketer is taking to comply with the DNCR legislation. A letter with a summary of the most recent complaints is sent to assist the fax marketer in a critical review of its fax marketing activities.
During both the 'advise' and 'warn' stages, a fax marketer is invited to contact a compliance officer at the ACMA to discuss its obligations under the DNCR legislation. It is important that a fax marketer take advantage of this.
For more serious cases, the ACMA may escalate a fax marketer from 'advise' to 'investigate', without progressing through the 'warning' stage.
Where no complaints are received about a fax marketer within a 180-day period, monitoring of the company will cease.
Investigation—what to expect
The ACMA may commence an investigation if it has reason to suspect that a fax marketer has contravened the DNCR legislation. While the majority of investigations are commenced after the two informal stages of monitoring, the ACMA retains the discretion to act more urgently if required.
Some of the factors the ACMA may take into consideration in deciding whether to investigate a fax marketer can include:
the number of complaints that have been received about the fax marketer, and over what period of time
the seriousness of the conduct described in the complaints
whether the fax marketer has been previously notified of potential compliance issues
whether the fax marketer contacted the ACMA after these notifications were sent
the extent to which the fax marketer has cooperated with the ACMA
whether the fax marketer is part of an industry sector that has serious, systemic or ongoing compliance issues
whether any new, untested or otherwise unique legislative issues would likely arise and all parties would benefit from considering these.
An investigation can result in a number of outcomes. These include a finding of no contravention, decision not to investigate further, formal warning, enforceable undertaking, infringement notice imposing a pecuniary penalty, and/or court action seeking the imposition of substantial fines.
The action taken will depend on the number and severity of contraventions identified as the result of an investigation.
Further information on the enforcement action available to the ACMA is available on our website.
Escalations and de-escalations
While most cases will be handled in the above way, this compliance approach is designed to be flexible, to reduce the amount of unwanted calls quickly and effectively. As such, the ACMA retains the discretion to escalate or de-escalate the action taken to the most appropriate compliance stage.
Do Not Call Register Act 2006—Compliance Guide
The Do Not Call Register Act 2006—Compliance Guide (compliance guide) provides fax marketers with practical advice about how they can aim for best practice compliance with the Act.
The compliance guide and addendum are not intended as a statement of things that fax marketers must do to comply with the legislation, or as a list of measures that, if applied, would necessarily ensure a person's compliance. Its primary objective is to help fax marketers meet their regulatory obligations under the legislation, and thereby reduce the number of prohibited faxes made to numbers on the register.
The compliance guide is available online at here or you can request a copy by calling the Do Not Call Register Operator on 1300 785 749.
Further information about the register, including a series of information sheets, can be found at www.donotcall.gov.au (by clicking 'Enter Industry site (TAP)' and then 'More Information') or by calling the Do Not Call Register Operator on 1300 785 749.
Please note: This publication intentionally avoids the use of legal language and information about the law may have been summarised or expressed in general statements. The information in this publication should not be relied upon as a substitute for professional legal advice or reference to the actual legislation.