ACMA considers industry self-regulation for spam and Do Not Call Register

14 Nov 2017

  • Privacy and Compliance

The Australian Communications and Media Authority (ACMA) is undertaking consultation to examine whether some (or parts) of its regulatory functions could be taken on by industry through self-regulation or co-regulation.

The consultation follows the Review of the Australian Communications and Media Authority by the Department of Communications and the Arts in 2016.  The ACMA Review was designed to ensure that ACMA remains fit-for-purpose in the rapidly changing communications environment.

The Final Report on the ACMA Review released in May 2017, recommended that ACMA consider the potential for self-regulation of the following:

  • technical standards
  • the Integrated Public Number Database (IPND)
  • the Do Not Call Register; and
  • action on unsolicited communications, including spam.

ADMA has been in discussions with ACMA in relation to self-regulatory and co-regulatory approaches to some of ACMA’s functions, and will submit a formal response to the consultation.

ADMA previously advocated for a move to self-regulation and co-regulation in order to future-proof the marketing and advertising industries.  In a self-regulatory or co-regulatory model, the regulator, ACMA, would be responsible:

  • for overseeing self-regulation by holding industry to account for alignment with broad regulatory principles in relation to spam and the Do Not Call Register
  • to provide guidance on how to interpret the broad regulatory principles when needed; and
  • to facilitate complaint resolution if industry-based resolution fails.

ADMA already encourages self-regulation through the ADMA Code of Practice and industry-based resolution through the independent Code Authority.

The purpose of the ADMA Code of Practice is to promote the highest standards of business practice and encourage consumer confidence. ADMA’s independent Code Authority is responsible for overseeing compliance with the Code of Practice and quickly resolving consumer disputes or concerns.

ADMA believes that this self-regulating approach will future proof the marketing, advertising and communications industry by encouraging agility and responsiveness to technologies and issues as they arise.

Who is ACMA?
The Australian Communications and Media Authority, or ACMA, is a converged regulator focusing on four areas of communications:

  1. Telecommunications
  2. Broadcasting
  3. Radio communications; and the
  4. Internet

It collects revenue for the government through broadcasting, radio and telecommunications taxes, charges and license fees.  In addition, it handles complaints about broadcasting standards on radio, TV, and the Internet.

Its main regulatory function, from a marketing and privacy standpoint, is its responsibility for the operation of the Spam Act and the Do Not Call Register Act, as well as a number of Codes of Practices – for example the Fax Marketing Industry Standard.

ACMA receives and investigates complaints from individuals about breaches of these laws, and where an organisation is found to have broken these laws, it can impose a range of penalties.

ACMA has a range of powers it can use to enforce the Spam Act and Do Not Call Register act, and to prevent organisations from breaching these acts, including for example:

• Issuing a formal warning,
• Accepting an undertaking from an individual or company to comply with the regulations (these will be backed by fines if not complied with)
• Issuing infringement notices, and will include a fine
• In severe cases, it can take the organisation to court, where if found guilty, the organisation and possibly certain individuals, can be required to pay damages or compensation, and significant fines.

ACMA’s preferred, and first approach, is always to work with the offending organisation to help them improve processes and put in place practices which prevent them from breaking the law in the future. Infringement notices and court actions are relatively rare, but necessary in some cases.

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