ACL | Warranties | Telemarketing | Privacy | Spam
Australian Consumer Law and Marketing Communications
ACCC and Australian Consumer Law (the Trades Practices Act)
Australia has one national law for fair trading and consumer protection – the Australian Consumer Law (ACL).
The Australian Competition and Consumer Commission (ACCC) – often referred to as “the A triple C” – is the Australian Federal Government’s national agency dealing generally with competition matters. The ACCC promotes competition and fair trade in the market place to benefit consumers, business and the community. It also regulates national infrastructure industries. Main website of ACCC is www.accc.gov.au .
The Australian Consumer Law is primarily based on the Competition and Consumer Act 2010 (previously known as the Trade Practices Act 1974, it was renamed and updated on 1 January 2011).
The Competition and Consumer Act’s purpose was to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. The Act deals with almost all aspects of the marketplace: the relationships between suppliers, wholesalers, retailers, competitors and customers. In broad terms the Act covers unfair market practices, industry codes, mergers and acquisitions of companies, product safety, product labelling, price monitoring, and the regulation of industries such as telecommunications, gas, electricity and airports.
Marketing Communications professionals planning campaigns in Australia should read a short summary of the Australian Consumer Law from a business perspective, published by the Australian Federal Government. They should also read the ACCC’s Advertising and Selling Guide for business.
Warranties and Guarantees
Marketing professionals need to pay particular attention to consumer guarantees, which are covered in Australian Consumer Law. These relate to marketing because they cover the topic of what is promised or described in marketing to customers before a purchase is made. Details of the law relating to consumer guarantees can be found on the ACCC website: http://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations. One very specific aspect of the law in Australia is that a vendor’s guarantee or warranty policy cannot over-ride the guarantee protections provided by Australian Consumer Law.
Also, “Extended Warranty” contracts may not simply replicate what is a consumer’s no-cost rights under Australian Consumer Law. To illustrate the comparison, Apple was ordered to display a clear comparison of its warranty and extended warranty terms alongside Australian consumer’s statutory rights under the law. This comparison was to be displayed on its website for a year.
The Australian Consumer Law covers many aspects of business activity, but advertising is perhaps the area where marketeers can most easily stray onto the wrong side of the law. The principle is the obvious one that businesses should not mislead or deceive through advertising. An excellent, plain English description of the Australia Consumer Law relating to advertising in Australia can be found at: ACCC’s Advertising and Selling Guide for business.
Australia’s Do-Not-Call Register for Telemarketing
Australia’s new telemarketing do-not-call legislation came into effect on 31 May 2007. While there are quite a lot of exceptions (eg market research calls, charities, and political parties) it is now illegal for telemarketers to call Australian phone numbers which are mainly for personal or domestic use and whose owners have put them on the do-not-not call register.
The Do-Not-Call register legislation is regulated by the Australian Communications and Media Authority.
Telemarketing companies must send their databases to Service Stream, who run the register. Service Stream then wash companies databases against the do not call register and send the telemarketing company a list of people who cannot be called. Fees will apply if more than 500 do-not-call names a year are returned to a telemarketing company. For most large telemarketing operations, these fees will be in the order of $24,000 a year initially (for up to 10 million names a year).
Consumers can register their phone numbers at: www.donotcall.gov.au.
Telemarketers can access the do-not-call register service at: www.donotcall.gov.au/dncrtelem/index.cfm
Privacy Legislation in Australia
From late 2001 the Australian Federal Government provided individuals with privacy of information protections under the law. These are covered by the Federal Privacy Act. In Australia, the Office of the Australian Information Commissioner (OAIC) is the regulatory body for this act. By and large, compliance with the law is pretty much common sense and encourages good business practice.
The OAIC is an Australian Government agency, established under the Australian Information Commissioner Act 2010 (AIC Act). The AIC Act provides that the OAIC is responsible for freedom of information functions, privacy functions and information policy functions.
As a very brief summary, the law revolves around asking people for permission to collect and use their information, and obligations to disclose what information is being kept and for what purpose, and obligations relating to the correction of inaccurate or disputed information. You should read the OAIC’s own summary – the Australian Privacy Principles. More information and guides on privacy legislation in Australia are available at: www.oaic.gov.au/privacy/privacy-resources/all/ .
SPAM comprises well over 50% of email traffic. It is a major problem to businesses, network operators, and individuals alike.
Definition of Spam
Spam is a generic term used to describe electronic ‘junk mail’ – unwanted messages sent to a person’s email account or mobile phone. In Australia, spam is defined as ‘unsolicited commercial electronic messages’. This includes email, SMS, MMS, instant messaging, social media alerts, and all other forms of electronic communication.
Spamming is an Unwise Business Practice
Although some companies think it is to their advantage to “play the numbers game” and blindly send out the same communication to many thousands of people, it is very poor business practice.
Even without recent legal constraints, it is bad marketing practice to send people emails that they neither expect nor find relevant.
By continuously communicating with individuals on topics that have no interest to them you simply train them to ignore you – very much affecting your ability to communicate with them on the occasion you have a targeted, relevant communication that you definitely want the individual to receive.
Some information on how to avoid being inadvertently caught by Spam filters – when sending legitimate permission-based email – can be read at the following site. Note this site is unrelated to Marketing Minds, and we do not endorse it or its suggestions in any way. www.wordbiz.com/avoidspamfilters.html
Regulation of Digital Marketing in Australia
Anti-spam bill introduced to Australian Federal parliament in September 2003 makes it a civil offence to use address harvesting software to construct distribution lists of recipients or a list built in this way. This had become a common practice by email Marketing companies.
Any unsolicited commercial emails must contain accurate information about the origin of the mail and provide a clearly visible means for recipient to opt out. The regulation applies to email, SMS, MMS, and instant messaging. The regulation applies regardless of where (which country) the email originated from or in which country the sending company resides. Non-commercial mail, not selling a product or service (eg market research) is exempt. Charities, political parties, religious organisations seeking donations are exempt.
Australia’s Spam Law
The Australian Communications and Media Authority (ACMA) and the Australian High Tech Crime Centre are working in partnership to identify and track down organisations or individuals who breach Australia’s Spam Act.
ACMA is the Australian Federal Government agency responsible for enforcing Australia’s anti-spam law, the Spam Act 2003. An explanation and key recommendations for marketers is provided on its the ACMA website: www.acma.gov.au
ACMA provides comprehensive information on how businesses can comply with Australia’s Anti-Spam legisliation at: http://www.acma.gov.au/Home/Industry/Marketers/Anti%20Spam.
Advertising Standards Regulation in Australia
The Advertising Standards Bureau administers Australia’s system of advertising self-regulation through the Advertising Standards Board and the Advertising Claims Board.
The self-regulation system recognises that advertisers share a common interest in promoting consumer confidence in and respect for general standards of advertising.
The Advertising Standards Board provides a free public service of complaint resolution. It provides determinations on complaints about most forms of advertising in relation to issues including the use of language, the discriminatory portrayal of people, concern for children, portrayals of violence, sex, sexuality and nudity, and health and safety.
The ASB website includes links and guidance on how members of the public may complain about a particular advert in Australia. www.adstandards.com.au
Intellectual Property in Australia:
Trade marks, Patents, and Copyright
Only companies who have registered a trade mark with the Australian regulatory agency, IP Australia, may use the ® symbol and have a legal exclusivity on their trade mark (i.e. it is only defensible under Australian Law if you are registered).
IP Australia also regulates Patents and registered Designs in Australia. Their website is at: www.ipaustralia.gov.au .
Without going into the blow-by-blow of it, if you are thinking of using a name (or other identity) for a product or something else significant to your business, you need to choose carefully (which is why there are quite a lot of consultants and lawyers specialising in this area).
Not everything can be registered – general rule of thumb is if the word is in common usage, you can’t claim ownership of it. Likewise, if the trademark you are attempting to register does not enable your goods or services to be distinguished from other people’s goods or services, then it cannot be registered.
In addition to names, a variety of other things can be trademarked in Australia. These are explained at: http://www.ipaustralia.gov.au/get-the-right-ip/trade-marks/types-of-trade-marks/
Note that under Australian law the use of ™ has no standing, strictly speaking. Accordingly, since it is fairly meaningless in an Australian legal context, use of ™ does not require any registration. If you want to use a term, name, symbol, image, etc as a legally protected trade-mark you need to get it registered and have permission to use the ® symbol from the Australian regulator. (IP Australia).
If you just want to impress people and make things look “important”, there’s nothing stopping you slapping ™ on anything and everything (and many people do!).
Note for multi-nationals with operations in Australia: registration of a trade mark in your home country does NOT automatically mean your favourite brand name, or whatever, is protected in Australia. You need to register the trade mark with the Australian authorities, even if you use the ® symbol at home. Likewise, things you have ™ on in your home country are not legally protected in Australia. The only subtlety to this is you CAN use the ® symbol identifying the country of registration next to is, but this tends to spoil your visual presentation – it is better to register in Australia.