PRIVACY, SPAM, COMPS & DEVELOPING REGS Working group Privacy Spam Promotions & competitions Misleading & deceptive conduct Developing regulation The regulators: ACCC Home Regulatory Compliance Regulatory Stay up to date on changes & shifts Stay on the right side of regulations to comply The regulatory and compliance landscape for data-driven marketers is constantly evolving. We have provided a summary of the fast-changing compliance and regulatory changes affecting advertising and marketing in Australia and overseas. There are a range of regulators and industry bodies across Australia and we encourage all marketers to seek advice best tailored to their business. We regularly call for industry input into the reviews and reports we submit to governments and regulators. To stay informed, please sign up to our newsletter. ADMA's Regulatory and Advocacy Working Group The Regulatory & Advocacy Group supports the industry by developing positions on regulatory issues and providing submissions and guidance (for example to the ACCC, or ACMA), as well as providing education on complex regulatory topics to the marketing industry. The Working Group represents the data-driven marketing industry but we feel that it is important to have the Key Global Tech Platforms feed into the conversation from a point of view of their platforms, product developments and applications (or concerns) around developing regulations both locally and internationally. The Regulatory and Advocacy Working Group The ADMA Regulatory and Advocacy Working Group is made up of a group of highly respected senior marketing, regulatory and policy experts that come from all the key industry pillars reflective of the ADMA membership. Each Member brings with them a wealth of industry experience and knowledge coupled with the ability to consider issues at a practical, commercial and consumer centric level. Chaired by Privacy and Data industry expert Peter Leonard and Co-Chaired by CMO Jo Boundy (Commonwealth Bank of Australia), ADMAs regulatory and advocacy working group is well positioned to carry out its role. The Working Group’s role is to provide appropriate advice and determine recommendations on ADMA’s position on various regulatory and advocacy issues that have an impact on the data-driven marketing and advertising industry. These recommendations will help provide the basis for submissions made by ADMA, provide guidance for ADMAs general advocacy, regulatory and compliance support for member and contributes to tailoring ADMA’s education offering. Where appropriate it will also help facilitate decision making by the ADMA Advisory Committee. Contact us for enquiries regarding the regarding the ADMA Regulatory and Advocacy Working Group or Sub-working Group: Representation of key Global Technology Platforms. Chair Peter Leonard Principal at Data Synergies Pty Ltd Vice chair Jo Boundy Chief Marketing Officer at Commonwealth Bank Australia Member Sarla Fernando Head of Regulatory & Advocacy Advisory at Association of Data-driven Marketing & Advertising (ADMA) Member Joshua Lowcock Global Chief Media Officer at UM Worldwide (New York-based) Member Micheil Brodie General Manager of Social Responsibility at The Star Entertainment Group Member Tim Clark Senior Marketing Manager at AGL Member Angela Greenwood Senior Director of Acquisition & Customer Marketing at Optus Member Lachlan Rees Manager, Government, Public Policy & Sustainability, Corporate & Regulatory Affairs, Suncorp Group Member Simon Wickson Head of Marketing Advisory, Woolworths Group (WooliesX) Member Kate Friedrich Head of Legal & HR, Qantas Loyalty Sub-working Group: Representation of key Global Technology Platforms To facilitate informed discussion of key platform developments, the Regulatory Working Group invites a Sub-Working Group made up of representatives of key Global Technology Platforms that are frequently referenced (by name or otherwise) in regulatory developments affecting the data-driven marketing and advertising industry. ADMA believes that as the digital economy underpins the data-driven marketing and advertising industry, it is prudent that the key Global Technology Platforms get the opportunity to directly feed into important discussions around regulatory issues and developments. This will ensure that recommendations are well informed, well rounded, applicable and make sense for both industry and the consumer. Member Josh Machin Head of Policy, Meta Australia Member Erin Tavallai AUNZ Privacy Lead, Google Member Sam Yorke Public Policy and Government Relations, Google Back to top VIEW REGULATORY TERMS Privacy Marketing to build trust In Australia, our concept of privacy hinges on how we define ‘personal information’. Privacy is regulated by the 1988 Privacy Act and 13 Australian Privacy Principles, called APPs but is a developing area with plans afoot to update Australia’s Privacy Act. Australia’s Privacy Act Australia’s APPs In an age when our smartphones know more about our location, searches and social media use than our family, it’s hardly surprising that privacy as a legal and social concept is in a state of flux. As of June 2021, the Attorney-General’s department is undergoing a review of Australia’s 1988 Privacy Act which has already flagged 6 broad categories of changes businesses should consider: Personal information: defining it and making laws around how it is collected, used and disclosed by platforms and anyone else ‘trading’ in personal information. Privacy consent: how will people opt in, be notified and ask for personal information to be deleted when platforms use personal information? The flow of Australian data to international platforms: how can local privacy laws not be compromised by conflicting international laws or codes like GDPR and CCPA. The right of individuals to enforce privacy obligations: should individuals be able to force companies to comply with privacy laws? A so-called ‘privacy tort’: strengthening laws to prohibit appalling privacy breaches. The effectiveness of the notifiable data breach scheme The very notion or privacy - what's public, what's protected and what is not - can be fuzzy and most businesses would be wise to tailor privacy and data handling policies to their unique circumstances. When websites, data or marketing services expand beyond Australia to territories which have their own strict privacy regime (like Europe or the US state of California), there can be more onerous laws to comply with. Privacy and the concept of personal information underpin the digital economy and particularly advertising and marketing services. Building consumer trust by protecting privacy and developing technology and business practices that create privacy by design is key. It’s also important to have internal policies in place to handle personal information and any data breaches. In some instances, it can be prudent to undergo privacy impact assessments on the work your business does. ADMA runs privacy compliance training to help businesses deal with the complex landscape around personal information, privacy and data security. Back to top VIEW REGULATORY TERMS Do not spam Spam regulations Spam is unsolicited electronic messages which usually arrive through email or SMS. Unwanted marketing messages is one thing, but these days spam can also be synonymous with scams, phishing and outright fraud where dangerous links and viruses can lead to identity theft and privacy breaches. It’s no wonder Australia tightly regulates the way marketers and businesses use electronic channels to communicate with customers. Marketers need to understand 3 core rules of Australia’s Spam Act to send emails, SMS or other electronic messages as part of their marketing mix: Consent - this can be explicit or inferred Identify - clearly identify your business and address Unsubscribe - always offer an unsubscribe or opt out option In April 2021, there was an update to the SPAM Regulations 2021. Now when someone receives a commercial electronic message and makes an unsubscribe request (using the unsubscribe facility they have been directed to in the message) they should not be required to: Use a premium service Provide further personal information Log in to or create an account; or Pay a fee or charge to the sender or a related person (with some exceptions) The Australian Consumer and Media Authority regulates spam under Australia’s Spam Act and regularly issues fines to businesses who breach spam laws. ACMA's spam regulations Contact ACMA to complain about SPAM Back to top VIEW REGULATORY TERMS Regulations for competitions Trade promotion rules Competitions and promotions are great to grab attention, generate conversation and gather data but there are plenty of rules to be considered before they are brought to life. Legal terminology defines most competitions as ‘trade promotions’ which are designed to boost awareness or sales for different businesses. Some important things for businesses running competitions or trade promotions is to: Have clear terms and conditions written to outline the rules and policies supporting the promotion – the business conducting the promotion will be classified as ‘The Promoter’ Make sure there is a clear privacy policy in place explaining how you store personal information. Understand the state lottery or consumer affairs laws that govern the promotion in whichever Australian state or territory the competition runs in There are two distinct types of competitions, and some states require permits under their different trade, consumer or lotteries regulations. Game of skill: where a winner is chosen against certain criteria, such as writing an answer in 25 words or less Game of chance: where all entries have an equal chance of winning, such as drawing a name out of a barrel WHAT YOU NEED TO KNOW ABOUT COMPETITIONS Many state and territory regulations have rules around publishing winners and clear terms and conditions for each promotion. Some also require permits, often based on prize value. Generally, marketers need to adhere to the lottery and trade promotion regulations of each state and territory their planned trade promotion or competition runs in. As always, many businesses require specific advice to ensure their promotion complies with state and territory laws. State lottery and trade promotion regulators WA WA TPL Commission SA SA TPL Commission TAS TAS TPL Commission NT NT TPL Commission QLD QLD TPL Commission NSW NSW TPL Commission ACT ACT TPL Commission VIC VIC TPL Commission Back to top VIEW REGULATORY TERMS Avoiding deceptive conduct Charities, social media influencers and businesses can all get caught It can be easy to get carried away with sales promises, headlines and great customer offers but Australian laws and regulators come down hard on misleading and deceptive conduct and claims. Whether it’s fake sales discounts, claiming an item is ‘free’ when it is not, unclear promises, false reviews or deliberately obtuse statements, it’s best to avoid abusing customer trust and steer clear of deceptive and misleading conduct. Australian Consumer Law Advertising Claims Guide In the past, Australia’s Competition and Consumer Commission has not hesitated to deliver heavy fines and penalties to businesses that over-promise on social media or other marketing channels. Misleading and deceptive conduct doesn’t need to be deliberate to incur a fine, so it pays to get advice on your particular business requirements and risks. Advertising & selling guide Consumer guarantees & refunds Social media claims guide Sales & telemarketing guide Back to top VIEW REGULATORY TERMS Changes Regulations, laws and compliance always evolve Legislation and the work of regulatory bodies like ACMA, ACCC and the OAIC are always evolving over time. When it comes to compliance and regulation issues that affect data-driven marketing, there are often different issues being explored or new reports and ‘exposure drafts’ being released for industry or public consultation. Sometimes it’s technology that leaps ahead and forces changes that lawmakers haven’t considered before. Other times, consumer needs or industry expectations have evolved to force us to consider different regulations. As of July 2021, there are several key areas of development to watch out for, including: The review of Australia’s Privacy Act The ACCC’s Digital Platforms Inquiry looking to regulate giant tech platforms The ACCC’s Digital Advertising Services Inquiry into programmatic advertising The changes to third party cookie technology, which underpin most programmatic advertising and marketing Evolving international laws around privacy, personal information and data, such as the GDPR and CCPA The expanding Consumer Data Right, which has begun with banking and will roll out to other industries ADMA advocates for the data-driven marketing industry and where appropriate makes public submissions to lawmakers, regulators and government. ADMA’s Regulatory Working Group determine the most appropriate position to take in representing all members of the industry. If you’d like to get involved as an ADMA member, make sure you are signed up to our newsletter. Businesses can also take advantage of ADMA’s education and training offers around regulatory and compliance areas. Back to top VIEW REGULATORY TERMS The regulators The ACCC oversees competition and consumer laws and is reviewing the digital industry ADMA is a member-driven industry body which works closely with regulators and governments to develop regulatory frameworks and compliance laws that are effective. The Australian Competition and Consumer Commission is the leading regulatory overseeing important regulatory changes and developments in Australia including: The digital platforms inquiry regulating giant tech platforms The digital advertising services inquiry into programmatic advertising The Consumer Data Right, which gives consumers the right to take their personal financial data to other banks or utility companies for a better deal Australian Consumer Law Australian Communications and Media Authority oversees Spam laws and other important electronic media regulations. The Office of the Australian Information Commission, the OAIC, is the key regulator for privacy and notifiable data breaches in Australia. Increasingly, financial regulators like APRA and ASIC are overseeing cybersecurity and financial data security issues which may potentially impact data-driven marketers as regulations evolve. Privacy, security, compliance, best practice and building trust across the data economy are key objectives that ADMA aims to achieve through its regulatory and compliance work. Back to top VIEW REGULATORY TERMS
Member Sarla Fernando Head of Regulatory & Advocacy Advisory at Association of Data-driven Marketing & Advertising (ADMA)
Member Lachlan Rees Manager, Government, Public Policy & Sustainability, Corporate & Regulatory Affairs, Suncorp Group