When is Telemarketing Acceptable?

Limitations on Hours
Direct Marketing Code of Practice
Personal Information

Dealers and traders are choosing increasingly to market their goods and services through the direct methods of mail, fax, telephone and electronic channels. Telemarketing uses a telephone or fax to contact customers.

Unacceptable telemarketing activities include contacting customers at inconvenient times. Telemarketing conduct is covered by state fair trading legislation, the Trade Practices Act 1974 (Cth) and direct marketing industry standards.

Limitations on Hours

All states (except for Victoria and New South Wales) have legislation in place that prevents dealers from contacting a person between certain prescribed hours. Under the legislation, a 'dealer' is someone who, in the course of door-to-door trading, calls on another person for the purpose of entering into a supply of goods and services. A person making telephone calls for said purpose is considered to be engaging in 'door-to-door' trading.

The prescribed prohibited hours are between 8:00pm to 9:00am on weekdays, 5:00pm to 9:00am on Saturdays and, in some jurisdictions, any time on Sundays and public holidays. The Queensland Fair Trading Act 1989 has recently been amended to extend its prescribed prohibited hours from 6:00pm to 9:00am on weekdays.

Section 60 of the Trade Practices Act prohibits a corporation from using physical force, undue harassment or coercion in connection with the supply, or possible supply, of goods or services to a consumer. The Australian Competition and Consumer Commission has suggested that undue harassment will include telephone calls made by traders to customers between 9:00pm and 8:00am.

Direct Marketing Code of Practice

The Australian Direct Marketing Association is a self-regulatory body that governs the way its members do business. The association has been involved in the development of the Direct Marketing Code of Practice, which sets out specific standards of conduct for participants in the direct marketing industry in relation to their customers. Under the code, the prohibited hours of calling are between 9:00pm and 8:00am. The code is only binding on association members. Other direct marketing associations are encouraged to adopt a voluntary set of guidelines based on the code.

Personal Information

The industry code Protection of Personal Information of Customers of Telecommunications Providers provides that code participants may use collected personal information for the purpose of direct marketing, even if it is beyond the primary reason of its collection. This is provided that code participants give individuals the express opportunity at the time of first contact (and thereafter upon request), and at no cost, to decline to receive any further direct marketing communications.

Code participants (ie, all signatories, carriers, carriage service providers and content service providers) become bound by this code upon registration with the Australian Communications Authority, pursuant to the Telecommunications Act (Cth) 1997.

For further information on this topic please contact Claudine Tinellis or Sharmila Soorian at Blake Dawson Waldron by telephone (+61 2 9258 6942) or by fax (+61 2 9258 6999 ) or by e-mail ([email protected] or [email protected]).