DNCR consent provisions
The Do Not Call Register (the Register) provides Australians with the opportunity to ‘opt out’ of receiving most telemarketing calls and marketing faxes.
However, if a person (or their nominee) has provided consent to your business to be contacted they may still receive certain telemarketing calls and marketing faxes from you.
Who can give consent
Consent can only be provided by the relevant account-holder (that is, the person who ‘owns’ the number being called) or their nominee.
A nominee can be any person nominated in writing by the account-holder, or a ‘deemed nominee’. A person is a ‘deemed nominee’ if they provide a number to your business so you can contact them by phone or fax. You can assume the person giving you the number has authority to do so and you don’t have to check whether the person is the account-holder.
It’s up to your business to prove consent. This means that if:
- your business calls or sends a fax to a number on the Register believing the consumer ‘consented’ to receive it, and
- the consumer does not believe they consented,
you must be able to provide evidence to prove your business had consent at the time the call or fax was made.
Types of consent
Consent can be given explicitly (‘express’) or inferred from the conduct and business or other relationship between a person and your business.
Express consent is where a person clearly indicates to your business that they are willing to receive telemarketing calls or marketing faxes from you, and gives their number to your business for that purpose.
For example, express consent is provided where a person ticks a box on a form, or accepts terms and conditions, agreeing to receive future telemarketing calls or marketing faxes from your business.
It may not be express consent if a person fails to tick a box advising that they do not wish to receive future telemarketing calls or marketing faxes.
Duration of express consent
Express consent lasts for three months from the date it was given, unless it was stated that the consent agreement was for a specified period or ongoing.
Inferred consent is where your business has reason to believe that a person is willing to receive a telemarketing call or marketing fax. This is based on the conduct, and business and other relationships, of the person and your business.
Whether consent may be inferred also depends on the sort of telemarketing calls or marketing faxes a person would reasonably expect to receive under an existing relationship.
For instance, a person who holds an ‘XYZ Bank’ credit card may reasonably expect to receive calls or faxes about ‘XYZ Bank’ home loans or ‘XYZ Bank’ savings products. But it is less likely to be reasonable for that person to be contacted by ‘Lucky’s Financial Services’, even if ‘Lucky’s Financial Services’ is related to ‘XYZ Bank’ in some way.
If a business relationship ends, your business’ ability to infer consent will usually end with it. Whether consent may still be inferred will depend on a number of factors which might include:
- the time between the relationship ending (for example, an account or contract expiring) and the call/fax from your business (the shorter the time, the more likely it is to fall within the context of an existing business relationship)
- the way the relationship ended. If a contract or an account lapses because the customer forgot to renew it, there may be a legitimate reason for your business to make a reminder call. But if you knew, or ought to have known, that the person was making a deliberate decision to end the business relationship, consent may not be inferred
- the person’s conduct. If a customer has expressed dissatisfaction with a service over time, this probably indicates an intention to end the relationship.
Duration of inferred consent
Inferred consent has no set duration, and will depend on the circumstances of each case.
Consent cannot be inferred just because:
1. the person previously accepted telemarketing calls, or
2. the number is published, for instance in a telephone directory, or online.
Withdrawal of consent
Both express and inferred consent can be withdrawn at any time. If a person indicates to your business that they no longer wish to receive marketing calls or faxes, consent is immediately withdrawn.
Tips for businesses
1. The burden of establishing consent lies with you in the event of any complaint.
2. Express consent is the best consent! Obtaining express consent where possible, rather than relying on inferred consent, will provide you with greater certainty in the event of any disagreement.
3. If you want express consent to continue for longer than three months, you need to make this clear when you obtain that consent.
4. If you rely on inferred consent, the type of contact must be one that would be reasonably expected under those particular circumstances.
Further information about the Register can be found at www.donotcall.gov.au.
Please note: this document is intended as a guide only and should not be relied on as legal advice or regarded as a substitute for legal advice in individual cases.