On the 23 September, the Yes campaign generated controversy by sending an SMS to thousands of Australians, reminding them to vote yes in the Same Sex Marriage Postal Survey (SSM Postal Survey) currently being conducted by the Government. Shortly after, Senator Cory Bernardi announced that he is launching a robocall campaign to a million Australian households across South Australia and Victoria that will include an automated phone poll on same-sex marriage and will urge Australians to vote no.
The strategies used by both campaigns have resulted in public debate about unsolicited communications (which is regulated by the Spam Act and the Do Not Call Register Act) and privacy (regulated by the Privacy Act). Indeed, even here at ADMA, we had to field calls over ‘where they got my number’ and whether it was in fact in breach of spamming and privacy laws.
So, did these campaigns break the laws in place to protect your privacy and protect you against spamming?
The short answer – No.
What happened to the anti-spamming laws?
There are several reasons why these tactics by the Yes and No campaigns did and will not breach anti-spamming and telemarketing laws:
1. The text-message was not a commercial electronic message
The Spam Act prohibits the unsolicited sending of a ‘commercial electronic message’. A commercial electronic message is a type of electronic message that has a ‘commercial purpose’. Whether an electronic message has this all-important ‘commercial purpose’ is determined with reference to the content of the message, the way in which the message is presented, and the content of any links in the message. Generally, a message will be considered to have a commercial purpose if one of the purposes is to offer, advertise or promote the supply of goods and services.
In short: As the Yes Campaign’s message was purely a political message (or factual message), the message itself did not meet the definition of ‘commercial electronic message’ and as such is not prohibited.
2. The robocall is not a telemarketing call
Similarly to the ‘commercial purpose test’ under the Spam Act, the rules around telemarketing phone calls only apply to ‘telemarketing calls’. These calls have a ‘commercial purpose test’ similar to that under the Spam Act.
Robocalls are separately regulated under the Do Not Call Register Act (DNCR) and the associated Industry Standards, including for example the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007. These standards set enforceable rules about how and when telemarketers and researchers can contact people. These standards are intended to give consumers greater certainty on the minimum level of conduct they can expect from those making unsolicited calls or sending marketing faxes.
This means that even if a particular business, such as a registered charity, is exempt from the requirements of the Do Not Call Register Act 2006 and therefore able to call or fax numbers listed on the register, it must still meet the requirements contained in the industry standards.
The regulator, Australian Communications and Media Authority (ACMA), released a statement on 25 September, noting that Australians may be contacted by phone, email or SMS in relation to the SSM Postal Survey. It clarified that as the calls, emails or SMS’ do not have a commercial purpose, they are generally allowed and not required to comply with the obligations Spam Act and Do Not Call Register Act (DNCR).
3. The text message was sent by Australian Marriage Equality (a registered charity) and the Australian Conservatives (a registered political party).
Several of the most outspoken organisations associated with the Yes and No Campaigns are charities registered with the Australian Charity and Not-For-Profits Commission (ACNC) or are registered political parties. The ACNC is the regulatory body that governs charities and not-for-profit organisations.
Registered charities, registered political parties and education institutions are exempt from the Spam Act. In addition, calls from registered charities or registered political parties, are automatically not considered as ‘telemarketing phone calls’ under the DNCR Act.
In short: This means that organisations like Australian Marriage Equality or the Australian Conservatives are lawfully allowed to send unsolicited commercial electronic messages and make robocalls (although, robocalls must still comply with the Industry Standard).
In a nutshell – the Yes SMS and the No phone calls – were not commercial electronic messages or telemarketing calls – and are so, not subject to the prohibition. But even if they were, both organisations are exempt from the Acts on the basis of being a registered charity or registered political party.
But, is this not an ‘invasion of privacy’?
At the outset, it is important to remember that, unlike other countries including the US, EU, and UK, Australians do not have an actionable right that protects them against invasion of privacy.
An actionable right is a type of right that allows a person to enforce the right through the courts. This means, for example, that Australians are not able to go to the courts to enforce their right to privacy, or rather to protect against the intrusion on their seclusion or private affairs.
The Privacy Act 1988 protects personal information as contained in material form – such as a record in a database. That is, the Privacy Act only applies to ‘personal information’. Personal information includes information or an opinion about an identified individual, whether true or not, and whether recorded or not, from which an individual can be reasonably identified.
Shortly after some members of the public raised privacy concerns over receiving an unsolicited text message, the Yes Campaign confirmed that the text messages were sent using a ‘technology platform’.
This platform creates randomised phone numbers (i.e. computer generated phone numbers) to message people. This platform, and other similar platforms, are used by political parties across the board during election campaigns and is not novel.
From this it can be assumed that the numbers were not purchased or collected through third parties. In addition, it is not easy to ascertain the identity of the individual from the phone number alone - access to the telcos' database or other similar databases that match identifying information such as name and address, to the particular computer generated phone number, would be required. This should alleviate most privacy concerns.
Community Expectations Count!
While the Yes and No Campaigns are technically compliant with the laws, there is still a valuable lesson for all businesses in this story. That is, basic compliance is just that – basic. It is often not enough to satisfy the expectations of your customers and the broader community.
Customers are not always across the intricacies, complexities and exceptions of the various laws. But they do have an expectation that organisations will engage with them in a transparent and honest manner – and usually, on their terms or with their consent.
The fall-out from the Yes Campaign perhaps provides one of the best examples of the importance of transparency and community expectations – the question that the public wondered when they received the SMS was ‘where did they get my number?’. Most privacy concerns were only alleviated after it was clarified that the numbers were randomly generated.
But even then, questions remained as to whether the SMS campaign breached anti-spamming laws. And while they didn’t, it still appears that some members of the public thought that they did – and this resulted in a negative engagement for some members of the public with the Yes Campaign.
The Australian Conservatives may have a leg-up on the Yes Campaign by using the old Whitepages to robocall 1 mil Australian households and forewarning them of the impending robocall, but questions about privacy are likely to become heightened. Collecting political views (a type a sensitive information under the Privacy Act) raise serious privacy concerns – ‘what do they plan to do with the information, who will they share it with, and will it be secure and protected?’. That’s in addition to the general problems associated with robocalls – that is, customers simply don’t like them.
The response from some members in the public in relation to these tactics is precisely why we, as an association, advocate for, and encourage our Members, to operate to a higher level of transparency and with a greater level of awareness of customers’ expectations – the aim is always to ensure a positive experience through any interaction, and to engender greater consumer trust with respect to privacy and how information and data is used.
ADMA continues to support its members with regulatory compliance, but we and our members know, it’s the community/customer expectations that count.