In brief - Companies need to be wary of breaching the Do Not Call Register

Substantial fines have been issued for breaches of the Do Not Call Register since it was established in 2007.

Establishment of the Do Not Call Register

The Do Not Call Register was set up by the Federal Government under the Do Not Call Register Act 2006 in order to control the number of unwanted telemarketing calls received by people at home. The Act prohibits unsolicited telemarketing calls and marketing faxes to numbers registered on the Do Not Call Register.

An Australian number is eligible to be entered on the Do Not Call Register if it satisfies any of these criteria:

  • It is used or maintained primarily for private or domestic purposes or for transmitting or receiving faxes
  • It is used or maintained exclusively for use by a government body
  • It is an emergency service number

Registration lasts for five years. The Do Not Call Register is managed by the Australian Communications and Media Authority (ACMA).

Exemption for public interest organisations

Some public interest organisations are exempt from the prohibition on calling numbers on the Do Not Call Register. For example, charities, political parties, educational institutions and religious organisations are allowed to make calls to numbers listed on the register to ensure that they can continue to provide services to the community.

Prosecution of FHT Travel for multiple breaches

In June 2011, the Federal Court found that Queensland telemarketing company FHT Travel Pty Limited and its sole director Yvonne Earnshaw breached the Do Not Call Register Act 2006 by causing more than 12,000 marketing calls to be made to numbers listed on the Do Not Call Register. FHT Travel was ordered to pay a fine of $120,000 and restrained for a period of five years from making telemarketing calls without first notifying ACMA.

ACMA actively pursuing companies for breaches

While this is not the first company to be reprimanded for breaching the Act, it is the first court penalty obtained by ACMA against a telemarketer. Businesses are now warned that breaches of the Act may result in substantial civil penalties and injunctions. To avoid a breach of the Act, businesses wishing to make telemarketing calls or send marketing faxes must wash their contact lists against the Do Not Call Register. Numbers on the register must not be called.

ACMA Chairman, Chris Chapman, commented that the penalty imposed by the court "should remind telemarketers of the serious consequences of breaching the Do Not Call Register Act" and that "telemarketers must respect the choice of people who have opted out of receiving their calls."

ACMA's website notes that since the commencement of the Do Not Call Register in May 2007, "ACMA's investigations have resulted in payment of nine infringement notices to the value of $438,300. In addition, 18 undertakings, enforceable in the Federal Court, have been accepted, and the ACMA has issued 10 formal warnings".

More information about the Do Not Call Register can be found at the website of ACMA and at the Do Not Call Register consumer site.

For further information please contact:

Anna Yeo, Solicitor
Phone: + 61 2 9233 5544
Email: aky@swaab.com.au

Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.