On 30 May 2010, amendments to the Do Not Call Register Act 2006 (DNCR Act) came into effect, allowing for Australian fax numbers to be entered on the Register. This means that any business that sends marketing faxes, or arranges for someone else to send marketing faxes, needs to be aware of the legislative arrangements.
What does this mean for the fax marketing industry?
The legislative arrangements prohibit the sending of unsolicited marketing faxes to a number on the Register, unless the recipient has consented to receive the fax.
Businesses that send marketing faxes (or have someone else send marketing faxes on their behalf) should ensure that they check, or ‘wash’ their contact lists against the Register prior to transmitting the fax. To check numbers against the Register you need to:
Washing numbers against the Register is a quick and easy process, which helps protect your business from contacting numbers on the Register.
Fax marketers can rely on the washing results they receive for a period of 30 days. This means that any business intending to conduct fax marketing should wash its contact lists against the Register at least every 30 days to filter out any newly registered numbers.
What you need to do
Fax marketers should:
read the information about the DNCR Act available on www.acma.gov.au (the relevant pages are listed below).
make arrangements to have numbers checked against the Do Not Call Register at least every 30 days. You can do this easily yourself at www.donotcall.gov.au, or you may arrange for someone else to check the numbers on your behalf.
contact us at email@example.com if you have any questions or are unsure about how the arrangements apply to your business.
What is a marketing fax?
The DNCR Act broadly defines a marketing fax as a facsimile of a physical document or a fax created by computer software that has a purpose to:
offer to supply, provide, advertise or promote
The purpose of the fax is assessed against the content of the fax and the presentational aspects of the fax.
Under this definition, a marketing fax must have a particular commercial-type purpose.
Consent to send a marketing fax
A person sending a marketing fax is still permitted to fax a number on the Register if the recipient has consented to receive the fax. For further information on ‘consent’ please refer to DNCR consent provisions.
Exempt marketing faxes
Faxes sent by certain organisations are deemed to be ‘designated marketing faxes’ and are exempt from the prohibition of faxing numbers listed on the register. Faxes from the following organisations are exempt:
Faxes which do not have a commercial marketing element do not fall within the definition of a marketing fax and can be sent to numbers listed on the register. These include faxes sent to conduct opinion polling or carry out standard questionnaire-based research (‘research faxes’).
For more information about these types of faxes please see calls and faxes I could still receive.
Where a marketing fax is sent to a number on the Register, the fax recipient can make a complaint to the ACMA. The ACMA may choose to investigate the matter if it appears that a breach may have occurred.
The legislation provides a range of enforcement options to the ACMA to deal with minor to very serious breaches. Penalty options include issuing formal warnings and infringement notices, seeking enforceable undertakings and taking civil court action.
The ACMA’s general approach to compliance is to negotiate and resolve the matter, without resorting to formal procedures. However, if informal resolution is unsuccessful or inappropriate the ACMA will take appropriate enforcement action.
For further information about the ACMA’s approach to compliance, please refer to our complaint handling policy.
Detailed advice about measures that fax marketers can take to comply with key requirements of the legislation is available in the Do Not Call Register Act 2006 Compliance Guide.
Fax marketing industry standard
The ACMA has made the Fax Marketing Industry Standard 2011 (the industry standard), which is intended to provide the community with greater certainty regarding the behaviour they can expect from fax marketers. It is also intended to encourage best practice in fax marketing.
The new industry standard sets rules about when and how fax marketers can contact people. Specifically, it includes requirements for:
when marketing faxes cannot be sent
information that must be provided on a marketing fax
provision of an opt-out functionality
frequency that marketing faxes may be sent in a particular period to a particular number.
The standard provides additional protections for all fax users. It applies to all marketing faxes sent to Australian fax numbers, whether or not the numbers are on the Register.
There is an exception to the rules where consent has been given by the call recipient in advance to receive the call during the prohibited calling hours.
The industry standard commenced on 4 May 2011.
More information about the fax marketing industry standard is available.
Further information is available on the following topics:
Please note: this information 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.