Fed­er­al Court sets seri­ous con­se­quences for mul­ti­ple breach­es of Do Not Call Register

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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.

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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. Alter­na­tive­ly, please con­tact our team for more information.

For fur­ther infor­ma­tion, please con­tact Swaab Attorneys.