ACCAN Informed Consent Project (21 August 2009)

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2. Review of consent requirements and definitions

• 2.1. Telecommunications Consumer Protections (TCP) Code
• 2.2. Telecommunications Act 1997 (Cth)
• 2.3. Spam Act 2003 (Cth)
• 2.4. Privacy Act 1988 (Cth)
• 2.5. Fair Trading Act 1999 (Vic)

The collection of informed consent from consumers is a key requirement in the communications sector. It is essential for contract formation, subscription services and the use of customer information. However, there is no single location for a definition of consent – and consent requirements are scattered throughout a mix of common law, generic consumer laws, specific telecommunication laws and industry codes of conduct.

This ad hoc approach has resulted in some key limitations on the effectiveness of consent requirements in the communications sector:

• Organisations only face detailed requirements for the information they must provide to consumers when they are seeking consent to churn (transfer) a consumer from one provider to another – they face no detailed information requirements for other sales;
• Consent requirements for the use of personal information (in privacy law) are stronger than consent requirements for paid services;
• Common law requirements provide limited avenues for redress for consumers without access to legal advice; and
• Organisations are only required to record consent for one service in one jurisdiction (telemarketing in Victoria) and for customer transfers.

The following section summarises some of the key consent requirements in current laws and codes.

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