Regulations and Laws on Marketing in Australia
Fair Trading and Marketing Communications:
ACCC and the Trades Practices Act
Australian Competition and Consumer Commission (ACCC)is the Australian Federal Government's national agency
dealing generally with competition matters and the only
agency with responsibility for enforcing Australia's Trade Practices
Act and the state/territory application legislation.
Main website www.accc.gov.au
Marketing Communications professionals planning campaigns in Australia should read a
short (7 page) plain english summary of the Trade Practices Act legislation, which can be downloaded from:
www.accc.gov.au/content/index.phtml/itemId/325781
The Trade Practices Act covers many aspects of business activity,
but advertising is perhaps the area where marketeers can
most easily stray onto the wrong side of the law. The
principle is the obvious one that businesses should not
mislead or decieve through advertising. An excellent,
plain english description of the Trade Practices Act and law relating to advertising in Australiacan be found at: www.accc.gov.au/content/index.phtml/itemId/6116
The
ACCC publishes a free, easy to understand guide for small
businesses on Advertising, Selling and the Trade Practices
Act at:
www.accc.gov.au/content/index.phtml/itemId/304501/fromItemId/6116
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Australia's Do-Not-Call Register for Telemarketing
Australia's new telemarketing do-not-call legislation came into effect on 31 May 2007. While there are quite a lot of exceptions (eg market research calls, charities, and political parties) it is now illegal for telemarketers to call Australian phone numbers which are mainly for personal or domestic use and whose owners have put them on the do-not-not call register.
The Do-Not-Call register legislation is regulated by the Australian Communications and Media Authority
Telemarketing companies must send their databases to Service Stream, who run the register. Service Stream then wash companies databases against the do not call register and send the telemarketing company a list of people who cannot be called. Fees will apply if more than 500 do-not-call names a year are returned to a telemarketing company. For most large telemarketing operations, these fees will be in the order of $24,000 a year initially (for up to 10 million names a year).
Consumers can register their phone numbers at: www.donotcall.gov.au
Telemarketers can access the do-not-call register service at: www.donotcall.gov.au/dncrtelem/index.cfm
Details for industry have been published at: www.acma.gov.au/WEB/STANDARD//pc=PC_300340
Privacy Legislation in Australia
From late 2001 the Australian Federal Government provided individials
with privacy of information protections under the law.
These are covered by the Federal Privacy Act (http://www.privacy.gov.au/act/index.html
). In Australia, the office of the Privacy Commissioner
is the regulatory body for this act. By and large, compliance
with the law is pretty much common sense and encourages
good business practice.
As a very brief summary, the law revolves around asking people
for permission to collect and use their information, and
obligations to disclose what information is being kept
and for what purpose, and obligations relating to the
correction of inaccurate or disputed information. You
should read the Privacy Commissioner's own summary - the
Australian National Privacy Principles can be downloaded
from:
http://www.privacy.gov.au/publications/nppgl_01.doc
The
Privacy Commissioner's website is:
www.privacy.gov.au
European Union Privacy Law
It is generally accepted that Europe has the strongest
data protection and privacy legislation, and that US citizens
have some protections, but less so than in either the
EU or Australia. When doing business internationally,
it would be wise to adopt business practices in compliance
with the European legislation, as well as with Australian
law.
Privacy and Electronic Communications (EC Directive) Regulations
2003 came into force on 11 December 2003. The Privacy
and Electronic Communications Regulations 2003 have 2
new rules for email marketing. A summary of these can
be read at:
http://ico-cms.amaze.co.uk/DocumentUploads/New%20rules%20on%20email%20marketing.pdf
For a full (31 page) description of the EC directive on these
and related regulations, see:
http://europa.eu.int/eur-lex/en/com/cnc/2004/com2004_0028en01.pdf
For more information, search for "Personal Data Protection"
on the European Union's law website at:
http://europa.eu.int/eur-lex/en/index.html
UK Information Commissioner website: http://www.informationcommissioner.gov.uk/
USA
Privacy and Spam legislation websites
USA Spam Act (passed by Congress December 2003)
http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.00877:
General site on US Law is provided by the "Thomas" (Jefferson)
site operated by The Library of Congress at http://thomas.loc.gov/home/thomas.html.
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Anti-Spam Legislation
SPAM
has risen from 17% of network traffic to over 50% in the
last 18 months. It is a major problem to businesses, network
operators, and individuals alike.
Definition of Spam
Spam is a generic term used to describe electronic 'junk
mail' - unwanted messages sent to a person's email account
or mobile phone. In Australia, spam is defined as 'unsolicited
commercial electronic messages'. This includes email,
SMS, MMS, instant messaging, and all other forms of electronic
communication.
Unwise
Business Practice
Although some companies think it is to their advantage
to "play the numbers game" and blindly send
out the same communication to many thousands of people,
it is very poor business practice.
Even
without recent legal constraints, it is bad marketing
practice to send people emails that they neither expect
nor find relevant.
By
continuously communicating with individuals on topics
that have no interest to them you simply train them to
ignore you - very much affecting your ability to communicate
with them on the occasion you have a targeted, relevant
communication that you definitely want the individual
to receive.
Some
information on how to avoid being inadvertently caught
by Spam filters - when sending legitimate permission-based
email - can be read at the following site. Note this site
is unrelated to Marketing Minds, and we do not endorse
it or its suggestions in any way.
http://www.wordbiz.com/avoidspamfilters.html
Regulation of eMarketing in Australia
Anti-spam
bill introduced to Australian Federal parliament in September
2003 makes it a civil offence to use address harvesting
software to construct distribution lists of recipients
or a list built in this way. This had become a common practice by eMarketing companies.
Any
unsolicited commercial emails must contain accurate information
about the origin of the mail and provide a means for recipient
to opt out. The regulation applies to email, SMS, MMS, and instant messaging.
The regulation applies regardless of where (which country) the email
originated from or in which country the eMarketing company resides. Non-commercial mail, not selling a product
or service (eg market research) is exempt. Charities,
political parties, religious organisations seeking donations
are exempt.
Australia's
Spam Law
The Australian Communications and Media Authority (ACMA) and the Australian High Tech Crime Centre are working
in partnership to identify and track down organisations
or individuals who breach Australia's Spam Act. The act
itself is developed and regulated by the Australian Government
Information Management Office (AGIMO). AGIMO is a body
within the Australian Federal Government Department of
Communications, Information Technology and the Arts (DCITA).
The main AGIMO website is at www.agimo.gov.au
The main DCITA website is at www.dcita.gov.au
The
ACMA is the Australian Federal Government agency responsible
for enforcing Australia's anti-spam law, the Spam Act
2003. An explanation and key recommendations for marketers
is provided on its the ACMA website: www.acma.gov.au
ACMA
was formed on 1 July 2005 by the merging of the Australian
Communications Authority (ACA) and Australian Broadcasting
Authority (ABA). On 16 March 2005, the former ACA registered
a code of practive for eMarketing under section 117 of
the SPAM Act with the effect that compliance with the
code is mandatory and enforceable by the Australian Communications
and Media Authority (ACMA). The code of practice can be
downloaded from the ACMA website via the following link:
The
Australian eMarketing Code of Practice: March 2005
Simple
business guides to combatting spam are available free
from the government websites listed above.
The Advertising Standards Bureau administers Australia's system of advertising self-regulation through the Advertising Standards Board and the Advertising Claims Board. The self-regulation system recognises that advertisers share a common interest in promoting consumer confidence in and respect for general standards of advertising. The Advertising Standards Board provides a free public service of complaint resolution. It provides determinations on complaints about most forms of advertising in relation to issues including the use of language, the discriminatory portrayal of people, concern for children, portrayals of violence, sex, sexuality and nudity, and health and safety. The ASB website includes links and guidance on how members of the public may complain about a particular advert in Australian. www.adstandards.com.au
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Australia's
Companies Law
The Australian Securities and Investments Commission
(ASIC) enforces and regulates company and financial services
laws to protect consumers, investors and creditors. An
independent Australian government body, ASIC has regulated
Australian financial markets, securities, futures and
corporations since January 1991. From 1998 it became responsible
for consumer protection in superannuation, insurance,
deposit taking and, from 2002, credit. ASIC works with
other financial and law enforcement agencies in Australia
and internationally.
www.asic.gov.au
ASIC
administers the following legislation (or relevant parts
of it), as well as relevant regulations made under it:
- Corporations
Act 2001
- Australian
Securities and Investments Commission Act 2001
- Insurance
Contracts Act 1984
- Superannuation
(Resolution of Complaints) Act 1993
- Superannuation
Industry (Supervision) Act 1993
- Retirement
Savings Accounts Act 1997 Life Insurance Act 1995.
Australian Institute of Company Directors (AICD)
Independent body which aims to foster professionalism in directorship. The main body in Australia providing education on corporate governance from a director's perspective, and representing the interests of its members - company directors.
www.companydirectors.com.au
Institute of Directors (UK)
UK organisation providing education on corporate governance, and representing the interests of its members - UK-based company directors.
www.iod.com
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Intellectual
Property in Australia:
Trade marks, Patents,
and Copyright
Only
companies who have registered a trade mark with the Australian
regulatory agency, IP Australia, may use the ® symbol
and have a legal exclusivity on their trade mark (ie it
is only defendable under Australian Law if you are registered).
IP
Australia also regulates Patents in Australia. Their website
is at: www.ipaustralia.gov.au
Without
going into the blow-by-blow of it, if you are thinking
of using a name (or other identity) for a product or something
else significant to your business, you need to choose
carefully (which is why there are quite a lot of consultants
and lawers specialising in this area).
Not
everything can be registered - general rule of thumb is
if the word is in common usage, you can't claim ownership
of it. The full rules are on IP Australia's website, summarised
by them at http://www.ipaustralia.gov.au/trademarks/faq_index.shtml#capable
Note
that under Australian law the use of ™ has no standing,
strictly speaking. Accordingly, since it is farily meaningless
in an Australian legal context, use of ™ does not
require any registration. If you want to use a term, name,
symbol, image, etc as a trade-mark you need to get it
registered and have permission to use the ® symbol
from the Australian regulator.
If
you just want to impress people and make things look "important",
there's nothing stopping you slapping ™ on anything
and everything (and many people do!).
Note
for multi-nationals with operations in Australia: registration
of a trade mark in your home country does NOT automatically
mean your favourite brand name, or whatever, is protected
in Australia. You need to register the trade mark with
the Australian authorities, even if you use the ®
symbol at home. Likewise, things you have ™ on in
your home country are not legally protected in Australia.
The only subtlety to this is you CAN use the ® symbol
identifying the country of registration next to is, but
this tends to spoil your visual presentation - better
to register in Australia.
The US
Copyright Laws
The US Copyright Office is the Government
agency of the USA which administers US copyright law,
and it is the place to register claims to copyright in the
USA.
* Home page http://www.copyright.gov
* Copyright legislation (bills and acts) in US Congress
www.copyright.com/legislation
Of US copyright law, the Digital
Millenium Copyright Act is of particular relevance to Australian businesses.
This is a result of the Free Trade Agreement between the
USA and Australia (agreed in 2004) and the ease with which
digital information and properties can be transmitted
and/or transacted.
www.copyright.gov/legislation/dmca.pdf
US Consumer Product Safety Commission (CPSC)
The US Consumer Product Safety Commission is the government body which regulates product recalls where these are for consumer safety issues. The CPSC website contains a comprehensive listing of all safety-related product recalls in the USA. http://cpsc.gov/
From 1st July 2008 onwards, all individuals and organizations who conduct lobbying activities or whose employees conduct Government lobbying activities on behalf of a client have to submit their details, including their clients names, to a public register. There are certain exclusions, but the rules are fairly comprehensive. The register covers all parties who represent clients in dealings with the Australian Public Service, Minsters or their staff, Government agencies and a number of other types of people. The Australian Register of Government Lobbyists and the associated Lobbying Code of Conduct can be viewed online at: http://lobbyists.pmc.gov.au
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