This file is a reformatted, updated but otherwise verbatim copy  of the ADMA Code of Practice - updated with an additional clause on an opt-out scheme for telemarketing and with the footnotes from the original document.  This is based on an HTML page I retrieved on 18 October 1998 from ADMA's site at:
http://www.adma.com.au/adma/live/me.get?ADMA1.pages.show&document&326
The "Regulatory Affairs" menu which leads to it is here and that menu calls it the Draft Revised Code of Practice  That menu can be reached from the About ADMA menu which is reachable from the front page http://www.adma.com.au/ image map. The document gives the date 23 September 1998.  As far as I can tell, this is the same text as the hard-copy printout (presumably of a Word file) which the ACCC was working from. However, the ADMA's HTML version does not have the footnotes of the document the ACCC faxed me.  The ACCC did not have an electronic version of the Code, and instead was photocopying and faxing or mailing it to privacy advocates.  The date on the front page of what the ACCC gave out was 1 September 1998.  The ACCC's Draft Determination was dated 7 October 1998 and mentions that the ADMA made its application on 2 September. 

The file you are reading now is based on the above ADMA file, with the following changes:

  • As of 19 October, this file contains an extra clause relating to an opt-out scheme for telemarketing and direct mail.  This clause was emailed to me by Angela  Razborsek of the ACCC.  She wrote:

        Please find attached an additional clause for inclusion in ADMA's Code.
        It will be clause 33 under the section headed 'Fair Conduct Relevant to
        Consumer Protection'.  Apologies for not forwarding it on Friday.

    I have added this clause to the end of section E: Fair conduct relevant to consumer data protection.  However the file itself indicates that it was intended to go at the end of section C instead, because it began with the heading "Clause 33 to be included under ‘Fair Conduct Relevant to Telemarketing’".  I have added a note to this effect at the end of that telemarketing section.  It is evident that this is a very recent development, since the file containing the new clause was written on Monday 19 October.
  • I have added the footnotes!  I read these from the ACCC's fax and have put them in as right-aligned tables.
  • The original file had some links to other parts of the ADMA site, which I have removed, and the main text was all in one table cell - which might have given some browsers indigestion. 
  • I have tidied up the layout and added links from the TOC to the section headings.


First a few notes on the scope of this proposal.  The ACCC's Draft Determination states that Direct Marketing includes sales and fundraising:

2.1 Direct marketing generally involves the marketing of goods or services, or the seeking of donations, through a means of communicating at a distance, where customers are invited to respond using a means of communication at a distance, and it is intended that the goods or services be supplied under a contract which is negotiated at a distance.
I think they are confusing direct marketing and distance selling, since they seem to think this code does not apply to door-to-door selling, and street solicitation, which to my understanding are forms of direct marketing - but that is a fine point.

Note that the Appendix 1 definition of "telemarketing call" clearly includes the use of completely automated systems which dial consumers and play them a recorded message.  These have been used at least once in Australia (a Melbourne FM station ca. 1995), and they have never been banned, despite concerns raised in the Austel Privacy Inquiry in 1992.

As of 19 October neither the ACCC nor ADMA have yet been able to provide up-to-date versions of their documents on the Web.

- Robin Whittle   19 October 1998 

More information on my critical view of ADMA's code and the ACCC's Draft Determination is at: http://www.firstpr.com.au/issues/tm/
 


 
 


AUSTRALIAN DIRECT MARKETING ASSOCIATION LTD

(ACN 002 909 800)
 
 

DIRECT MARKETING Code of Practice
 

Suite 1, Level 5, 100 William Street

PO Box 464 Kings Cross NSW 1340

23/09/98


 



 
 
 
 
 
 

TABLE OF CONTENTS

A Introduction

What is the code?
Why is the code necessary?
Statement of Objectives
Scope of the code
Conflict with legislation
Citation

B Standards of fair conduct

Marketing claims
Misleading or deceptive conduct
False claims
Market research claims
Member Suppliers
Information at time of offer
Information at the time of delivery
Unfair conduct
Incentives
Delivery of gifts, prizes or free items
Contests, lotteries or sweepstakes
Availability of goods or services
Delivery
Delayed delivery
Payment
Cancellation and refunds
Cooling-off period of 7 days or more
When the cooling-off period does not apply
Method of cancelling a contract pursuant to rights during a cooling off period
Option to cancel a contract for continuing series of goods or services
Payment of refunds
Minors
Unordered goods or services
Substituted goods or services
Responding to a complaint

C Fair conduct relevant to telemarketing

Identification information
Information to be provided on request
Guise of research
Acceptable calling conduct
Permitted calling times
Line disconnection times
Calling frequency

D Fair conduct relevant to electronic commerce

Equivalent Protection for electronic commerce
Essential online information
Acceptance
Consumer complaints, redress and dispute resolution
Privacy
Security and authentication mechanisms

E Fair conduct relevant to consumer data protection

Collection
Use and disclosure
Determining primary purpose of collection:
Reasonable expectations test
Data Quality
Data Security
Openness
Access and correction
Identifiers
Anonymity
Trans Border Data Flows
Sensitive information

F Enforcement

Complaint received by the ADMA
Responding to complaints related to alleged breach of the Code
No breach of the Code
Potential breach of Code by non-members
Potential breach of the Code by member
Hearing before the Authority

G Code review and amendment

Review
Amendment

APPENDIX 1 - Interpretation and definitions


A Introduction

What is the code?

1 The Code sets out specific standards of conduct for participants in the direct marketing industry in relation to their customers and serves as a benchmark in settling disputes between industry participants and customers.

2 The requirements of the Code are based on common sense and are matters of fairness and honesty. The Code not only promotes fair trading but is intended to serve as a point of reference for direct marketers to ensure they comply with all applicable state and commonwealth fair trading laws.

 Why is the code necessary? 3 Direct marketing is expanding rapidly. More consumers are choosing to purchase goods and services through direct response channels and more businesses are using these media to meet this increasing demand. Because they operate at a distance rather than face to face with their customers, direct marketers place a greater emphasis on building consumer confidence and trust. This is especially true in respect of their handling of personal data such as name, address and buying preferences.

4 The future expansion of direct marketing depends on the players conducting their business in a fair, honest and ethical manner. Only by doing so can the reputation of the industry be enhanced so that customer demand will continue to grow.

 Statement of Objectives
 
5 The objectives of the Code are to:
5.1 ensure customers have access to the product and service information they need to make informed choices;

5.2 minimise the risk of direct marketers breaching the Trade Practices Act 1974 or state fair trading legislation;

5.3 promote a culture among direct marketers of conducting their businesses fairly, honestly, ethically and in accordance with best practices; and

5.4 increase consumer confidence in doing business with ADMA members.

    Scope of the code 6 The Code binds all ADMA members and all employees, agents or subcontractors of ADMA members.

7 An alleged breach of the Code by a member of ADMA, its employees, agents or subcontractors will be dealt with in accordance with the enforcement provisions of the Code.

8 If ADMA becomes aware of an alleged breach of the Code by a direct marketer who is not a member, ADMA bring the matter to the attention of the company concerned and seek compliance.

9 The Code requires members ensure their suppliers comply with the Code, by requiring that this is a condition of contracts between members and their suppliers.

  Conflict with legislation 10 Where there is any conflict or inconsistency between the Code and any Commonwealth, State or Territory legislation, that legislation shall prevail to the extent of the conflict or inconsistency. Citation
 
11 This Code may be cited as the ADMA Code of Practice.


B Standards of fair conduct

Marketing claims
Misleading or deceptive conduct

  11 A direct marketer shall not make misleading or deceptive claims about an offer delivered through direct marketing whether by words, omission, illustration or any other means. False claims
12 A direct marketer shall not:
12.1 make false or misleading claims with respect to the price or quality of goods or services;

12.2 quote scientific or technical data in support of a claim, unless the data can be readily substantiated;

12.3 use a false or misleading testimonial;

12.4 advertise courses of instruction implying the promise of employment or remuneration where this cannot be guaranteed;

12.5 promise outcomes where those outcomes have no safe scientific, medical or performance basis;

12.6 overstate physical security risks; and

12.7 describe goods or samples as "free" unless the goods or samples are supplied at no cost or no extra cost to the customer other than actual postage/carriage when specified.

 Market research claims 13 A direct marketer must not represent that it is undertaking market research where the purpose for contacting the customer is direct marketing. Member Suppliers 14 All ADMA members will require suppliers to comply with Code procedures as if the supplier were themselves a direct marketer.   Information at time of offer 15 Customers must be provided with all information reasonably necessary for them to make an informed purchase decision.   16 The customer must be given clear, unambiguous and easily accessible information of the material terms of the offer, including at least the following:
  16.1 the name of the relevant direct marketer and a street address at which they can be contacted - a post office box, newspaper or magazine box number, facsimile or telephone number, or an electronic mail address will not suffice as a street address;

16.2 the total price of the goods or services, including any delivery charge and any other fee or charge to which the customer would be liable under the contract unless otherwise authorised by the customer;

16.3 the delivery arrangements;

16.4 all material restrictions, limitations or conditions to purchase; and

16.5 the period, if any, for which the contract solicitation remains valid.

 Information at the time of delivery 17 No later than at the time of delivery, or in cases where delivery is to be effected in stages, the time of the first delivery, the customer shall receive at least the following information in writing, in a clear and unambiguous style and in the same language as was used in the contract solicitation: 17.1 the name and contact details, including at least the street address, of the direct marketer where customers can make inquiries or complaints, or can return goods or cancel contracts;

17.2 the payment arrangements, including any credit terms, or terms for payment by instalments, and a total cash price;

17.3 all restrictions, limitations or conditions of purchase;

17.4 any safety or care warnings required by any applicable law to accompany the goods or services and, where necessary, instructions for proper use; and

17.5 refund, cancellation and exchange rights and procedures.
 

 18 In the case of services that, by their nature, can be delivered extremely quickly to the customer, the information should be sent to the customer within three days of the services commencing. Note 1
  
Note 1 This is to cover services which can be provided almost instantaneously, e.g. certain changes to telephony services, where a charging plan may be changed or implemented while the customer is speaking to the operator. In these circumstances, the seller may provide the detailed written information as soon as possible and in any event within three days.
Unfair conduct 19 A direct marketer must not engage in conduct which is unfair or "unconscionable." For example, a customer’s poor spoken or written English, or an obvious inability to understand the offer must not be exploited. Incentives 20 The terms and conditions under which incentives, including prizes, gifts, or other rewards are offered must be clearly stated, including: Delivery of gifts, prizes or free items Contests, lotteries or sweepstakes (Note 2)
  
Note 2 The conduct of contests, lotteries or sweepstakes is also governed by separate State and Territory laws.


23 A direct marketer who intends to conduct a lottery or contest must:

23.1 make available, at the point of entry, the rules governing the contest or lottery, including whether the customer’s name and address will be retained;

23.2 ensure that judging takes place promptly and fairly and is certified by an independent auditor; and

23.3 make available the results of the contest or lottery to participating customers who request them.

 Availability of goods or services 24 Unless the promotional material specifically warns of limited stocks, the direct marketer must not offer particular goods or services for sale until sufficient stock is available, or reasonably expected to be available, to meet the reasonably foreseeable demand. Delivery 25 If the direct marketer has not specified a period for delivery then the goods or services must be delivered in a reasonable time from receipt of an order, such reasonable period of time not to exceed 30 days.   Delayed delivery
26 When an order cannot be delivered:
27 If the direct marketer is not able to deliver the goods or services by the date stated in the initial notice, the direct marketer must either: 28 If the direct marketer is not able to deliver the goods or services by the date stated in the second notice, the procedure set out in the above clause 27 shall be repeated until the goods or services are delivered or the transaction has been cancelled and any moneys paid refunded. Payment
 
29 A direct marketer must not request or accept payment for goods or services if it:
Cancellation and refunds Cooling-off period of 7 days or more   30 Each contract a direct marketer makes with a customer shall provide that the customer has the right to cancel the contract: When the cooling-off period does not apply
33 The cooling off period need not apply to:
33.1 contracts for the supply of indivisible services where those services have started to be provided;

33.2 any portion of services which have already been performed under a contract for the supply of divisible services;

33.3 transactions concerning securities and other goods or services whose price is dependent on financial market fluctuations, which cannot be controlled by the direct marketer;

33.4 contracts for made-to-measure goods or clearly personalised goods;

33.5 contracts for goods which can be immediately copied, such as books, magazines, computer software, cassettes, videos and compact discs that are supplied with or without a wrapping or seal, unless the good’s immediate wrapping or seal is unbroken;

33.6 contracts for personal health or hygiene goods where any wrappings or seals have been broken or tampered with; and

33.7 contracts for goods which by reason of their nature cannot be returned or are liable to deteriorate rapidly.

 Method of cancelling a contract pursuant to rights during a cooling off period   34 Customers who are entitled to cancel a contract with a direct marketer by exercising their cancellation rights during a cooling-off period may cancel the contract by: 35 For the purposes of clause 33, goods will be considered to be in their original condition despite their packaging or swing tags having been removed or tampered with.   36 A direct marketer is not responsible for the costs of returning goods under a contract cancelled in accordance with the cooling-off provisions.   Option to cancel a contract for continuing series of goods or services   37 A contract for the supply of a continuing series of goods or services must enable either party to cancel by giving reasonable notice.   38 When a party to a contract for a continuing series of goods or services cancels the contract, each party must satisfy any obligations outstanding at the time of cancellation.   Payment of refunds 39 Where a customer is entitled to a refund, a direct marketer must refund moneys within seven business days of the direct marketer receiving the returned goods or notice of the cancellation of the contract from the customer.   40 The direct marketer has a choice whether it makes a refund by way of money or by making a credit adjustment to the customer’s credit card where: Minors 41 A direct marketer must have appropriate procedures in place to limit the sale of restricted goods or services to minors.   42 For the purpose of clause 41, the definition of ‘minor’ in any restricting legislation is to apply. Unordered goods or services 43 Customers who have been supplied unordered goods or services shall not have to pay for those goods or services.   44 Subject to clause 43, customers who have received unordered goods shall become the owner of the goods: whichever is the sooner, unless the direct marketer takes possession of the goods before this time has expired. 45 During the time period referred to in clause 44, the direct marketer may contact the customer to make reasonable arrangements for taking possession of the unordered goods.   46 Direct marketers are entitled to take possession of goods in the following circumstances: Substituted goods or services 47 A direct marketer that cannot supply exactly the same good or service as specified by a consumer may supply a substitute good or service of a similar kind, quality and price provided that the possibility of this occurring has been clearly indicated at the time of offer.   48 If a direct marketer supplies substitute goods or services to those ordered they must be of a similar kind, quality and price and the direct marketer must clearly inform the customer of: 49 When a contract for a substituted good is cancelled, the direct marketer is responsible for the costs of returning the goods. The direct marketer must promptly reimburse the customer in respect of any reasonable costs incurred by the customer in returning the goods. Responding to a complaint 50 Direct marketers must have in place procedures for dealing with complaints from consumers. Such procedures must comply with the Australian Standard for Complaints Handling AS 4269 available from Standards Australia.

C Fair conduct relevant to telemarketing

Identification information

1 At the earliest possible opportunity in an outbound telemarketing call, a direct marketer must ensure that the following information is provided to the customer and repeated if the customer at any time requests: 1.1 the name of the person making the telephone call;

1.2 where a service bureau is making the calls, the name of the organisation on whose behalf the call is being made; and

1.3 the purpose of the telephone call.

 2 When making an outbound telemarketing call, direct marketers must not block the transmission of the calling line identity to any calling number display or any calling name display of a customer who receives the telephone call. (Note 4)   
Note 4 When the outbound call is made by a service bureau on behalf of another organisation, calling line identity blocking may be used provided that the customer is given a telephone number for the organisation.
3 A direct marketer who makes telemarketing calls must ensure that its name, address and telephone number is listed in a telephone directory or, if a new listing, its telephone number is available through a directory assistance service. Information to be provided on request 4 A telemarketer must ensure that the following information is provided to customers who request such information: 4.1 the telemarketer’s name and contact details, including a telephone number and street address;

4.2 the name of the person who is responsible for handling customer inquiries which the telemarketer receives;

4.3 further details concerning the goods or services being offered; and

4.4 details of the source from which the telemarketer obtained the customer’s personal information.

 5 A telemarketer who is not able to provide the information at the time of the request will ensure that the customer is provided with the information in a reasonable period after the request is made. Guise of research 6 Where the purpose of the call is to sell a good or service, telemarketers must not represent that they are undertaking market research. Acceptable calling conduct 7 If it appears that a customer has been interrupted at an inconvenient time by a telephone call, the telemarketer must promptly offer to call the customer back and inquire as to when would be a more convenient time to do so.

8 A telemarketer must provide the customer with a clear opportunity to accept or decline the direct marketer’s offer.

 Permitted calling times 9 A direct marketer must ensure that all telephone calls to a customer are made between the hours of 8am and 9pm and are not made on the following public holidays: 10 If the customer has previously agreed to receive a telemarketing telephone call from the direct marketer outside of these hours or on these public holidays then the direct marketer may make such a call to that customer. Line disconnection times 11 A telemarketer must ensure that the customer’s telephone line is released within five seconds of the customer hanging up or otherwise indicating that he or she requires the telemarketer to release the telephone line. Calling frequency 12 A telemarketer must not contact a customer more than once in any 30 day period for the same or similar campaign without that customer’s prior consent.
 
An additional clause was emailed to me by the ACCC on 19 October, regarding an opt-out scheme for telemarketing and direct mail.  It was headed "Clause 33 to be included under ‘Fair Conduct Relevant to Telemarketing’" so perhaps it was meant to be at the end of Section C. The email from the ACCC indicated it should be in Section E, so that is where I have added it.  Jump to it here.
- Robin Whittle  19 October 1998


 

D Fair conduct relevant to electronic commerce

Equivalent Protection for electronic commerce

1 The same level of protection provided by the practices that apply to other methods of commerce should be afforded to customers who participate in electronic commerce. Essential online information 2 Clear, complete and current information about the identity of businesses engaged in electronic commerce and about the goods and/or services they offer, should be provided to customers. Additional information should be provided to address particular aspects of digitised good and services, such as technical requirements or transmission details. Acceptance 3 Acceptance of an offer online should be informed and unambiguously expressed by the customer in a format that allows the parties to maintain a complete and accurate record of the contracts. Consumer complaints, redress and dispute resolution 4 Information about making complaints, obtaining redress and pursuing dispute resolution for electronic commerce should be provided online to customers. Mechanisms and procedures should be developed to facilitate handling complaints, providing redress and pursuing dispute resolution online. Privacy 5 Electronic commerce should be conducted in accordance with the consumer data protection principles outlined in Part E of this Code. Security and authentication mechanisms 6 Internationally interoperable security and authentication mechanisms for electronic commerce should be developed and used.

E Fair conduct relevant to consumer data protection

Collection

1 A direct marketer should only collect personal information that is necessary for one or more of its legitimate functions or activities.   2 A direct marketer should only collect personal information by lawful and fair means and not in an unreasonably intrusive way.   3 At or before the time a direct marketer collects personal information from the subject of the information (or, if that is not practicable, as soon as practicable thereafter), it should take reasonable steps to ensure that the subject of the information is aware of: 3.1 the identity of the direct marketer and how to contact it;

3.2 the fact that he or she is able to gain access to the information;

3.3 the purposes for which the information is collected; (Note 5) 

Note 5 The description of the purposes can be kept reasonably general, and if the collection is made for only one purpose, it would often be apparent simply from the title of the form, for example. 'Application for Membership". Internal purposes that form part of normal business practice - auditing, business planning and so on - need not be mentioned.


3.4 to whom (or the types of individuals or organisations to which) it usually discloses information of this kind;

3.5 any law that requires the particular information to be collected; and

3.6 the main consequences (if any) for the individual if all or part of the information is not provided.
    4 Where information is being collected on a form, a direct marketer’s obligations under clause 3 can be satisfied by a statement on the form. This could be introduced, if it does not already appear, when the direct marketer next reprints its forms. It would not be necessary to destroy existing stocks of forms.
    5 Where information is collected over the phone, it may not be practicable to cover all the clause 3 matters at the time of collection. People should be informed of them as soon as possible, for example, in any confirmatory documentation.
6 The principles do not require an individual to be repeatedly and specifically told the same things every time they have contact with a direct marketer.

7 Where it is reasonable and practicable to do so, a direct marketer should collect personal information directly from the subject of the information.

8 Where a direct marketer collects personal information from a third party, it should take reasonable steps to ensure that the subject of the information is or has been made aware of the matters listed under clause 3. (Note 6) 

Note 6 The provisions of this section are framed to ensure that organisations that use third party data (external lists) establish that the suppliers of that data (list) have complied with the disclosure requiremements of clause 3. That is, that consumers have been made aware that their details may be passed on to another party for marketing purposes.  This can be accomplished in practice by entering into contractural arrangements of by using the ADMA standard list agreement that incorporates this requirement. At the end of the day the onus is on the list user to ensure compliance before use.
Use and disclosure 9 A direct marketer should only use or disclose personal information for a purpose other than the primary purpose of collection (a ‘secondary purpose’) if: 9.1 (a) the secondary purpose is related to the primary purpose of collection; and
  (b) the subject of the information would reasonably expect the direct marketer to use or disclose the information for the secondary purpose; or


9.2 the individual has consented to the use or disclosure; or (Note 7) 

Note 7 If the consequences for the individual of the use or disclosure were serious, the organisation would have to be able to demonstrate clearly that the individual could have been expected to understand what was going to happen to the information; in such circumstances it would generally be more appropriate to seek express consent.  However, implied consent is acceptable in some circumstances: For example, implied consent could legitimately be inferred from the individual's failure to object to a proposed use or disclosure (that is a failure to opt out), provided that the option to opt out was clearly and prominently presented and easy to take up.


9.3 (a) the direct marketer uses the information for the purpose of direct marketing; and

  (b) it is impracticable for the direct marketer to seek the individual’s consent before using the information; and

(c) the direct marketer gives the individual the express opportunity, at the time of first contact or thereafter upon request, and at no cost, to decline to receive any further direct marketing communications; and

(d) if at any time the individual declines to receive further direct marketing communications, the direct marketer sends no more communications; (Note 8)  or 

Note 8 This allows personal information to be used in order to establish contact with an individual, even if they have not consented and would not reasonably expect the information to be used for this purpose, provided that the individual is given the chance to opt out of any further approaches.
9.4 the direct marketer reasonably believes that the use or disclosure is necessary to prevent or lessen a serious and imminent threat to an individual’s life or health; or   9.5 the direct marketer has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or   9.6 the use or disclosure is required or specifically authorised by law; or

9.7 the use or disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty or for the protection of the public revenue; or

9.8 an intelligence or law enforcement agency asks the direct marketer to use or disclose the personal information on the basis that the use or disclosure is necessary to safeguard the national security of Australia.

 Determining primary purpose of collection: 10 When a direct marketer collects personal information from an individual, both parties are usually aware of the purpose of collection, for example: to purchase a product or service, enter a competition, make a donation or obtain a discount. This is the "primary" purpose of collection, even if the direct marketer has some additional purposes in mind.

11 Where the information is not collected from the individual, the direct marketer usually uses the information soon after collection in a manner associated with the primary purpose of collection. For example, if an insurance company consults an insurance reference service in the course of considering an applicant, it seems clear that the primary purpose of collection is to decide whether or not to insure the individual.

 Reasonable expectations test
    12 A direct marketer should only use or disclose personal information in ways in which a person with no special knowledge of the industry or activity involved would "reasonably expect". For example, a person who subscribes to a magazine could reasonably expect to receive offers from a book club that was affiliated (co-branded) with the magazine. However if, from the customer’s perspective, there was no obvious link between the magazine and its affiliated book club, the individual would not reasonably expect their contact details to be passed along for direct marketing purposes without first being given a clear opportunity to opt-out.
13 If a direct marketer uses or discloses personal information under clause 9, it should make a note of the use or disclosure. Data Quality 14 A direct marketer should take reasonable steps to make sure that the personal information it collects, uses or discloses is, accurate, complete and up to date. Data Security 15 A direct marketer should take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.   16 A direct marketer should take reasonable steps to destroy or permanently suppress personal information if it is no longer needed for any purpose. Openness 17 A direct marketer should have clearly expressed policies on its management of personal information which should be readily available.

18 A direct marketer, on request, should take reasonable steps to let individuals know, generally, what sort of personal information it holds, for what purposes, and how it collects, holds, uses and discloses that information.

 Access and correction 19 Where a direct marketer holds personal information about an individual, it should provide the individual with access to the information on request, except to the extent that: 19.1 providing access would pose a serious and imminent threat to the life or health of any individual; or

19.2 providing access would have an unreasonable impact upon the privacy of other individuals; or

19.3 providing access would be unduly onerous for the direct marketer; or

19.4 the request for access is frivolous or vexatious; or

19.5 providing access would be likely to prejudice an investigation of possible unlawful activity; or

19.6 providing access would be unlawful; or

19.7 denying access is specifically authorised by law; or

19.8 the information relates to existing legal dispute resolution proceedings between the direct marketer and the individual, and the information would not be accessible by the process of discovery in those proceedings; or

19.9 providing access would reveal the intentions of the direct marketer in relation to negotiations with the individual in such a way as to prejudice those negotiations; or

19.10 an intelligence or law enforcement agency asks the direct marketer not to provide access on the basis that providing access would be likely to cause damage to the national security of Australia.

 20 Where providing access would reveal evaluative information generated by the direct marketer in connection with a commercially sensitive decision-making process, the direct marketer may give the individual an explanation for the decision rather than direct access to the information.

21 If a direct marketer has given an individual an explanation under clause 20, and the individual believes that direct access to the evaluative information is necessary to provide a reasonable explanation of the reasons for the decision, the individual should have access to an independent process to review whether that is so.

22 Wherever direct access by the individual is impracticable or inappropriate, the direct marketer and the individual should consider whether the use of mutually agreed intermediaries would allow sufficient access to meet the needs of both parties.

23 If a direct marketer levies charges for providing access to personal information, those charges:

23.1 should not be excessive; and
23.2 should not apply to lodging a request for access. 24 If a direct marketer holds personal information about an individual and the individual is able to establish that the information is not accurate, complete and up to date, the direct marketer should take reasonable steps to correct the information so that it is accurate, complete and up to date.

25 If the individual and the direct marketer disagree about whether the information is accurate, complete and up to date, and the individual asks the direct marketer to associate with the information a statement claiming that the information is not accurate, complete or up to date, the direct marketer should take reasonable steps to do so.

26 A direct marketer should provide reasons for denial of access or correction.

 Identifiers 27 A direct marketer should not adopt as its own identifier an identifier that has been assigned by a government agency (or by an agent of, or contractor to, a government agency acting in its capacity as agent or contractor).

28 A direct marketer should not use or disclose an identifier assigned to an individual by a government agency (or by an agent of or contractor to a government agency acting in its capacity as agent or contractor) unless one of clauses 9.4 to 9.8 applies.

 Anonymity 29 Wherever it is lawful and practicable, individuals should have the option of not identifying themselves when entering transactions. Trans Border Data Flows 30 A direct marketer should only transfer personal information to another party if: 30.1 the direct marketer reasonably believes that the recipient of the information is subject to a statute, binding scheme or contract which effectively upholds principles for fair information handling that are substantially similar to these principles; or

30.2 the individual concerned consents to the transfer;

30.3 the transfer is necessary for the performance of a contract between the individual concerned and the direct marketer, or for the implementation of pre-contractual measures taken in response to the individual’s request; or

30.4 the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the individual concerned between the direct marketer and a third party; or

30.5 the transfer is for the benefit of the individual concerned, and

(a) it is not practicable to obtain the consent of the subject of the information to that transfer; and

(b) if it were practicable to obtain such consent, the subject of the information would be likely to give it; or

 30.6 the direct marketer has taken reasonable steps to ensure that the information which it has transferred will not be collected, held, used or disclosed by the recipient of the information inconsistently with these principles. Sensitive information 31 A direct marketer should not collect personal information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or details of health or sex life unless: 31.1 the subject of the information has consented; or

31.2 the collection is required or specifically authorised by law; or

31.3 the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual, where the subject of the information is physically or legally incapable of giving consent; or

31.4 in the course of the legitimate activities of a non-profit-seeking body with a racial, ethnic, political, philosophical, religious or trade-union aim and on condition that the information relates solely to the members of the body or to individuals who have regular contact with it in connection with its purposes and that the information is not disclosed without the consent of the subject of the information; or

31.5 the collection is necessary for the establishment, exercise or defence of a legal claim.
 

 32 Clause 31 does not apply where: 32.1 the information is required for the purposes of preventative medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and

32.2 is collected;

32.3 as required by law; or

32.4 in accordance with rules established by competent bodies dealing with obligations of professional confidentiality
 


Here is an additional clause 33, as emailed to me by the ACCC on 19 October, regarding an opt-out scheme for telemarketing and direct mail.  It was headed "Clause 33 to be included under ‘Fair Conduct Relevant to Telemarketing’" so perhaps it was meant to be at the end of Section C instead.
- Robin Whittle  19 October 1998

Respecting Consumer Preference

A direct marketer must use the Do Not Mail/Do Not Call services of ADMA when conducting a direct marketing campaign, in order to remove the name of any consumer, other than a current customer, who has requested that they not receive direct marketing offers.  A “current customer” is defined as any customer who has made the purchase within the last six months or during a normal selling cycle.
 

F Enforcement

1 The scope of ADMA’s enforcement procedures will be limited to alleged breaches of the Code and does not include mediation of consumer complaints that would normally be dealt with by a member’s internal complaints handling process. Complaint received by the ADMA 2 Any person who considers that a direct marketer has breached a provision of the Code may lodge a complaint with ADMA, addressed as follows:   Code Compliance Officer
Australian Direct Marketing Association
Level 5
Westfield Towers
100 William Street
Kings Cross
New South Wales 1340   3 The complainant should set out the following details: 3.1 his or her name and contact details;

3.2 the name and, if known, the contact details of the direct marketer;

3.3 a brief outline of the complaint; and

3.4 if the complainant has previously made a complaint to the direct marketer, a brief outline of how that complaint was dealt with by the direct marketer.

 Responding to complaints related to alleged breach of the Code
No breach of the Code   4 If, after assessing a complaint, the Code compliance officer does not consider there has been a breach of the Code, the Code compliance officer shall write to the complainant informing him or her that: Potential breach of Code by non-members   5 Where the Code compliance officer considers that a direct marketer who is not a member of ADMA may have breached the Code, the Code compliance officer may write to the non-member informing them of the existence of the Code and request compliance.   Potential breach of the Code by member   6 Where the Code compliance officer considers that an ADMA member may have breached the Code, the officer shall write to the ADMA member outlining the particulars of the alleged misconduct and requesting a written response to the allegations within 14 days.   7 If within 14 days the ADMA member provides clear evidence of acting in compliance with the Code or independently resolves the complaint, the Code compliance officer will take no further action.

8 If the ADMA member disputes the complaint they must show evidence of steps undertaken in the matter to comply with the Code. If the member is not able to demonstrate compliance within a reasonable period of time, the Code compliance officer shall refer the complaint to the Code Authority for its consideration in accordance with clauses 9, 10 and 11.

9 Upon reviewing the complaint, the Code Authority may:

 Hearing before the Authority   10 At the Code Authority hearing, the ADMA member shall be given a reasonable opportunity to present its case. The member may make verbal submissions in relation to the allegations. The ADMA member may appear in person or may be represented by some other person.

11 Prior to or at the Code Authority hearing, the ADMA member may make written submissions to the Code Authority. Prior to the Code Authority hearing, the ADMA member must be given a reasonable opportunity to inspect any documents which the Code Authority proposes to have regard to in reaching its decision on the allegations.

12 Within 14 days of the conclusion of the Code Authority hearing, the chief executive officer shall send the direct marketer a notice containing the decision of the Code Authority. If the decision affirms the allegations then the notice shall also include any remedial action the Code Authority considers appropriate.

13 The member will have 14 days from receipt of the decision of the Code Authority to take the necessary steps to comply with the decision.

14 If within 14 days from receipt of the decision of the Code Authority the member is unable to demonstrate compliance with the decision, the CEO will call a special meeting of the Board of Directors to consider removing the member from the Association, subject to the recommendation of the Code Authority.

15 If ADMA records indicate that the member has breached the Code on two or more occasions in the preceding twelve months, the Code Authority may recommend to the CEO that ADMA membership be revoked.


G Code review and amendment

Review

16 The Code shall be reviewed one year after it has been adopted and thereafter every three years.

17 In conducting its review of the Code, the Code Authority should, where appropriate, consult with groups affected by the Code.

18 The review shall be presented to the Board.

 Amendment 19 The Board may at any time resolve to amend the Code after receiving such recommendations from the Code Authority.

20 Once an amendment of the Code has been made by the Board, the Board will ensure that:




APPENDIX 1 - Interpretation and definitions

1 References to singular include the plural and vice versa.
2 The Code is to be interpreted in accordance with its objectives. It is not to be read literally if that would produce a result clearly contrary to those objectives.

3 Unless otherwise indicated, in the Code these words have the following meanings:

3.1 ADMA means the Australian Direct Marketing Association Limited (ACN 002 909 800) of suite 1, level 5, 100 William Street, Kings Cross, New South Wales 1340;

3.2 Board means the board of directors of ADMA;

3.3 Code means the ADMA Code of Practice as amended from time to time in accordance with Part G of the Code;

3.4 Code Authority is the Authority established by the ADMA, consisting of persons of good character and repute in the direct marketing industry and including at least one customer representative.

3.5 direct marketer means an individual, corporation, partnership or organisation contracting or intending to contract for the sale of goods or services to a customer where:

 An employee, director or agent of a direct marketer shall also be considered a "direct marketer" for the purposes of the Code;   3.6 fundraiser means a person, company, partnership or organisation which solicits donations from the public using a means of distance communication;

3.7 telemarketing telephone call means a telephone call initiated by a direct marketer or by an automatic dialler mechanism of a direct marketer that is designed to induce customers to purchase goods or services.

  (End.)