Privacy Law and Policy Reporter
ADMA’s Direct Marketing Code of Practice is available on its web site at http://www.adma.com.au/adma/live/me.get?ADMA1.pages.show&document&326
An alternative version, including the footnotes in the printed version, is at http://www.firstpr.com.au/issues/tm/adma-code-980923.html
The following extracts from the Code highlight some aspects significant to privacy, but do not reflect the full scope of the Code which also deals with other issues such as misleading or deceptive conduct. Numbering of clauses is as found in the Code — General Editor
2 When making an outbound telemarketing call, direct marketers must not block the transmission of the calling line identity to any calling number display or any calling name display of a customer who receives the telephone call. (Note 4 )
Note 4 When the outbound call is made by a service bureau on behalf of another organisation, calling line identity blocking may be used provided that the customer is given a telephone number for the organisation.
4 A telemarketer must ensure that the following information is provided to customers who request such information:
4.1 the telemarketer’s name and contact details, including a telephone number and street address;
4.2 the name of the person who is responsible for handling customer inquiries which the telemarketer receives;
4.3 further details concerning the goods or services being offered; and
4.4 details of the source from which the telemarketer obtained the customer’s personal information.
5 A telemarketer who is not able to provide the information at the time of the request will ensure that the customer is provided with the information in a reasonable period after the request is made.
9 A direct marketer must ensure that all telephone calls to a customer are made between the hours of 8am and 9pm and are not made on the following public holidays: Christmas Day; Good Friday; and Easter Sunday.
10 If the customer has previously agreed to receive a telemarketing telephone call from the direct marketer outside of these hours or on these public holidays then the direct marketer may make such a call to that customer.
12 A telemarketer must not contact a customer more than once in any 30 day period for the same or similar campaign without that customer’s prior consent.
A direct marketer must use the Do Not Mail/Do Not Call services of ADMA when conducting a direct marketing campaign, in order to remove the name of any consumer, other than a current customer, who has requested that they not receive direct marketing offers. A ‘current customer’ is defined as any customer who has made the purchase within the last six months or during a normal selling cycle.
1 The same level of protection provided by the practices that apply to other methods of commerce should be afforded to customers who participate in electronic commerce.
5 Electronic commerce should be conducted in accordance with the consumer data protection principles outlined in Part E of this Code.
(Part E is, with some additions, the Privacy Commissioner’s ‘National Principles’ with the words ‘direct marketer’ substituted for ‘organisation’, and a selection from the Commissioner’s Notes. They are not repeated here (see (1998) 4 PLPR 165), except for clause 9 on Use and Disclosure, which is central to direct marketing. The other extracts below are the significant additions to the ‘National Principles’ in the ADMA Code — General Editor).
4 Where information is being collected on a form, a direct marketer’s obligations under clause 3 can be satisfied by a statement on the form. This could be introduced, if it does not already appear, when the direct marketer next reprints its forms. It would not be necessary to destroy existing stocks of forms.
5 Where information is collected over the phone, it may not be practicable to cover all the clause 3 matters at the time of collection. People should be informed of them as soon as possible, for example, in any confirmatory documentation.
6 The principles do not require an individual to be repeatedly and specifically told the same things every time they have contact with a direct marketer.
8 Where a direct marketer collects personal information from a third party, it should take reasonable steps to ensure that the subject of the information is or has been made aware of the matters listed under clause 3. (Note 6)
Note 6 The provisions of this section are framed to ensure that organisations that use third party data (external lists) establish that the suppliers of that data (list) have complied with the disclosure requirements of clause 3. That is, that consumers have been made aware that their details may be passed on to another party for marketing purposes. This can be accomplished in practice by entering into contractual arrangements by using the ADMA standard list agreement that incorporates this requirement. At the end of the day the onus is on the list user to ensure compliance before use.
9 A direct marketer should only use or disclose personal information for a purpose other than the primary purpose of collection (a ‘secondary purpose’) if:
(a) the secondary purpose is related to the primary purpose of collection; and
(b) the subject of the information would reasonably expect the direct marketer to use or disclose the information for the secondary purpose;or
9.2 the individual has consented to the use or disclosure; or (Note 7)
Note 7 If the consequences for the individual of the use or disclosure were serious, the organisation would have to be able to demonstrate clearly that the individual could have been expected to understand what was going to happen to the information; in such circumstances it would generally be more appropriate to seek express consent. However, implied consent is acceptable in some circumstances: For example, implied consent could legitimately be inferred from the individual’s failure to object to a proposed use or disclosure (that is a failure to opt out), provided that the option to opt out was clearly and prominently presented and easy to take up.
(a) the direct marketer uses the information for the purpose of direct marketing; and
(b) it is impracticable for the direct marketer to seek the individual’s consent before using the information; and
(c) the direct marketer gives the individual the express opportunity, at the time of first contact or thereafter upon request, and at no cost, to decline to receive any further direct marketing communi-cations; and
(d) if at any time the individual declines to receive further direct marketing communications, the direct marketer sends no more communications; (Note 8) or
Note 8 This allows personal information to be used in order to establish contact with an individual, even if they have not consented and would not reasonably expect the information to be used for this purpose, provided that the individual is given the chance to opt out of any further approaches.
12 A direct marketer should only use or disclose personal information in ways in which a person with no special knowledge of the industry or activity involved would ‘reasonably expect’. For example, a person who subscribes to a magazine could reasonably expect to receive offers from a book club that was affiliated (co-branded) with the magazine. However if, from the customer’s perspective, there was no obvious link between the magazine and its affiliated bookclub, the individual would not reasonably expect their contact details to be passed along for direct marketing purposes without first being given a clear opportunity to opt-out.
1 The scope of ADMA’s enforcement procedures will be limited to alleged breaches of the Code and does not include mediation of consumer complaints that would normally be dealt with by a member’s internal complaints handling process.
10 At the Code Authority hearing, the ADMA member shall be given a reasonable opportunity to present its case. The member may make verbal submissions in relation to the allegations. The ADMA member may appear in person or may be represented by some other person.
12 Within 14 days of the conclusion of the Code Authority hearing, the chief executive officer shall send the direct marketer a notice containing the decision of the Code Authority. If the decision affirms the allegations then the notice shall also include any remedial action the Code Authority considers appropriate.
15 If ADMA records indicate that the member has breached the Code on two or more occasions in the preceding 12 months, the Code Authority may recommend to the CEO that ADMA membership be revoked.
19 The Board may at any time resolve to amend the Code after receiving such recommendations from the Code Authority.
3.4 Code Authority is the Authority established by the ADMA, consisting of persons of good character and repute in the direct marketing industry and including at least one customer representative.
3.5 direct marketer means an individual, corporation, partnership or organisation contracting or intending to contract for the sale of goods or services to a customer where:
An employee, director or agent of a direct marketer shall also be considered a ‘direct marketer’ for the purposes of the Code;
3.7 telemarketing telephone call means a telephone call initiated by a direct marketer or by an automatic dialler mechanism of a direct marketer that is designed to induce customers to purchase goods or services.