The Spam Act 2003 governs the sending of electronic messages for commercial purposes. It came into force on 10 April 2004. The Spam Act regulates the sending of commercial electronic messages which have an “Australian link”, which is where:
- the sending of the message was authorised by a data subjectphysically present in Australia when the message was sent;
- the organisation who sent the message is an organisation whose central management and control is in Australia when the message is sent; or
- the relevant electronic account-holder is a person who is physically present in Australia at the time the message is accessed or is an organisation that carries on business or activities in Australia at the time the message is accessed.
The Spam Act excludes from its provisions the messages sent by way of a voice call made using a standard telephone service.
The Do Not Call Register (DNCR) Act 2006 and Do Not Call Register Regulations 2017 govern telemarketing and fax marketing. The DNCR Act allows organisations seeking to make or authorise telemarketing calls to submit a list of Australian telephone numbers to the Australian Communications and Media Authority (ACMA) for checking against the Register in order to identify and eliminate from that list the telephone numbers of people who have listed their telephone number on the Register – a practice known as “washing”. Both the Spam Act and the DNCR Act are regulated by the ACMA.
Although the Australian Privacy Principles (APPs) deal with direct marketing, they do not apply to the extent that the DNCR Act or the Spam Act apply.
The Telecommunications Act 1997 (Act No. 47, 1997) sets up a system for regulating communications and applies to carriers and service providers. Part 13 of the Telecommunications Act regulates the use and disclosure of information obtained by certain bodies during the supply of telecommunication services. It makes it an offence for certain participants in the telecommunications industry (carriers, carriage service providers, telecommunications contractors and their employees; eligible number-database operators; and emergency call persons) to use or disclose information or a document relating to the:
- contents or substance of a communication carried, or being carried, by a carrier or carriage service provider;
- carriage services supplied or intended to be supplied by a carrier or carriage service provider; or
- affairs or personal particulars (including any unlisted telephone number or any address) of another person.
The Telecommunications (Telemarketing and Research) Industry Standard 2017 regulates telemarketing. The Standard governs telemarketing to numbers not entered on the DNCR . It establishes minimum standards in relation to the hours and days that telemarketing and research calls are able to be made, the nature, purpose and source of telemarketing or research calls, the termination of telemarketing calls upon the request of the recipient and the provision of calling line information. Similar rules apply to fax marketing and are outlined in the Fax Marketing Industry Standard 2011.