Do I Need Consent for Telemarketing?

Your business may choose to engage in direct marketing strategies to reach new audiences. However, carrying out unsolicited phone calls or faxes will require you to follow a set of strict guidelines. You must be aware of the laws around consent for telemarketing so that you can comply with your obligations and avoid harsh penalties. This article explains:

• what telemarketing is;
• how to comply with telemarketing law; and 
• what happens if you break the law.

What is Telemarketing?

Telemarketing involves any commercial offering that you make via a: 

• voice call; or
• fax. 

A commercial offering refers to an attempt to market and sell a product or service.

Even if making the commercial offering is not the primary purpose of your call or fax, the law still considers it telemarketing. 

Any telemarketing calls to an Australian phone number must comply with the relevant telemarketing laws. This is true regardless of whether you make the call from: 

• Australia; or 
• overseas.

Check the Do Not Call Register

Australians can lodge their phone number with the Do Not Call Register to minimise the number of unsolicited calls that they receive. The law prevents businesses from contacting the numbers on this list for telemarketing purposes, unless the account holder of that number has given their consent to be contacted.

If your business engages in telemarketing, you must check whether a number you intend to call or fax is recorded on the Do Not Call Register. If any of the individuals on your call list have registered their numbers, you must check whether you have their consent before attempting to make contact with them.

Exempt Calls and Faxes

Certain types of calls and faxes are excluded from some of the telemarketing requirements under the law. These include communication made by:

• government bodies and registered charities for the purpose of supplying products or services; and
• authorised political parties with an electoral or political purpose.

This kind of communication is only exempt from needing to: 

• check the Do Not Call Register; and
• obtain consent to call a number on the register. 

Exempt callers may still need to follow other telemarketing rules, such as:

• identifying themselves; and 
• only calling within permitted hours. 

How to Wash Contact Numbers 

To wash a contact number means to confirm whether it is on the Do Not Call Register. You can sign up for an account to be able to check your call list against the register. Subscriptions come in tiers with ascending costs, depending on how many numbers you want to wash and the features you wish to access. 

This process involves submitting your list to the Do Not Call Register, which will return a report that identifies which numbers are:

• on the register;
• not on the register; or
• invalid.

You must note which numbers have been lodged on the register and remove them from your call list. It is unlawful to contact these numbers unless you are confident you have consent to do so.

Importantly, you can only rely on this information for 30 days. Confirmation that a number is not on the register will expire after this time, as the account holder may have since added their number to the register. You will be breaking the law if, after 30 days, you:

• fail to wash a phone number that an account holder has since lodged with the register;
• call or fax this number for a commercial purpose; and
• do not have consent.

This means you must wash your call list every 30 days to meet your obligations.

How to Obtain Consent?

Consent to call or fax a number on the Do Not Call Registry can be express or inferred.

Express Consent

You will have express consent to engage an individual in telemarketing if you have a direct agreement with the account holder to receive your calls or faxes.

By default, you will only have permission to telemarket to these individuals for three months from the date on which they give you consent. However, you can include a period for which the consent lasts in the agreement.

Inferred Consent

You can also infer permission to contact someone based on an existing business relationship.

What Else Do You Need to Do? 

Call Only at Permitted Times

You can only make telemarketing calls during specific hours, unless you have received express permission to call an individual at another time. These hours are subject to change, but at the time of writing you can only make a call between:

• 9am-8pm on business days; and
• 9am-5pm on Saturdays.

The time zone used to calculate the time of the call is that of the recipient. 

Identify Yourself

You must identify yourself as the caller to the recipient of the call or fax. Once reaching them, you must state:

• who is making the call or sending the fax;
• on whose behalf you are making contact, including whether you are calling on behalf of another business; and
• the purpose of the call.

Stop the Call When Asked

You must promptly end the call if the recipient makes it known that they no longer want the call to continue.

These are all indications that you should immediately end the call. 

What Happens If You Break the Law?

If your business breaks a telemarketing law or regulation, you may be subject to complaints from individuals. This can trigger an investigation by the Australian Communications and Media Authority (ACMA) into your business’ practices. Violations of telemarketing laws can incur harsh penalties, including:

• financial penalties; 
• undertakings given to ACMA; or 
• legal action brought by ACMA in the Federal Court. 

Legal Responsibility

You will be held responsible for violating telemarketing laws if you do not take the correct steps outlined in this article. Importantly, you are also responsible if you have authorised the call. 

This means that even if you outsource your telemarketing to a call centre, you will be held responsible for any wrongdoing on their part. Therefore, it is a good idea to include a promise to comply with telemarketing laws in your contract with the call centre.

The Sumo Power Case

Sumo Power was subject to an ACMA investigation in mid-2019, finding that they engaged in unlawful telemarketing. The business was issued with an infringement notice by ACMA with a penalty of $46,200. 

This is because Sumo Power authorised calls to numbers on the Do Not Call Register, without consent from the account holder.

Although Sumo Power claimed to have consent to contact these numbers, they could not prove this to ACMA due to poorly maintained records. They also used third-party call centres that they had not properly monitored. 

This demonstrates the importance of ensuring that you gain the consent of individuals on the Do Not Call Register before making contact. Additionally, it highlights the necessity of maintaining evidence that you have their consent.

Key Takeaways

You must comply with telemarketing laws if your business makes calls or sends faxes with a commercial purpose, even if this is not the main purpose of your communication. Unless you have consent for telemarketing, you can only call or fax numbers that are not on the Do Not Call Register. You should only call within permitted times, unless the person permits you to call at another time. It is also important that you identify who is calling and for what purpose. Failing to comply with the law may result in serious financial consequences. If you would like legal advice concerning your obligations under telemarketing law, contact LegalVision’s marketing compliance lawyers on 1300 544 755 or fill out the form on this page.