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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.
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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
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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
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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
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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.
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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:
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.
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