Right to privacy

Right to restrict unwanted direct marketing:

Direct marketing means to approach a person either in person or by mail or electronic communication for the direct or indirect purpose of (a) promoting or offering to supply, in the ordinary course of business, any goods or services to the person or (b) requesting the person to make a donation of any kind for any reason.

The Act limits unfettered use of consumer’s personal information for unsolicited direct marketing campaigns by requiring direct marketers to provide consumers with an “opt out” option for unsolicited marketing communication.

Every person’s right to privacy includes the right to:

(a)  refuse to accept;

(b)  require another person to discontinue;

(c)  in the case of an approach other than in person, to pre-emptively block any approach or communication to that person if it is primarily for the purpose of direct marketing.

A person who has been so approached may demand during or within a reasonable time after that communication, that the person responsible for initiating the communication, desist from initiating any further communication.

Obligations of Supplier / Direct marketer:

A person authorising, directing or conducting any direct marketing is required to:

  • ensure that a consumer who has registered a pre-emptive block or made a demand for the direct marketer to desist from further communication, is not contacted or directly marketed to in a similar way again (an employer needs to ensure that it’s employees adhere to this requirement)
  • implement appropriate procedures to facilitate the receipt of such demand

The Commission may establish or recognise as authoritative a registry in which a person may register a pre-emptive block either generally or for specific purposes against any communication that is primarily for the purpose of direct marketing.  No person may charge the consumer a fee for making a demand or registering a pre-emptive block.

Regulation of time for contacting consumers:

A supplier may not engage in direct marketing directed at a consumer at home for any promotional purpose during a prohibited period except where the consumer has expressly or implicitly requested or agreed to it.   Prohibited times include Sundays or public holidays, Saterdays before 09h00 and after 13h00, and all other days between the hours of 20h00 and 08h00 the following day.  The direct marketer is not in breach if they send out the marketing during the allowed times even if the consumer receives it during the prohibited times (the onus to prove it was sent out in the allowed time rests on the direct marketer).

Direct marketers must assume a comprehensive pre-emptive block has been registered by the consumer with the administrator, unless the administrator has confirmed in writing otherwise.  Every direct marketer must register with the administrator and must annually confirm in writing their details.  Direct marketer’s cannot send promotional material to the consumer unless they have confirmed (and received that confirmation in writing) that no pre-emptive block in fact has been registered.

Regulation 4 sets out some mechanisms to block direct marketing commucination, such as informing the direct marketer, placing a communication or sign on a postal box, post office box or other container for mail indicating that the consumer does not wish to receive any material related to direct marketing, or display the phrase “no adverts”.