26.1 ‘Direct marketing’ involves the promotion and sale of goods and services directly to consumers. Direct marketing can include both unsolicited direct marketing and direct marketing to existing customers. For unsolicited direct marketing, direct marketers usually compile lists of individuals’ names and contact details from many sources, including publicly available sources.[1] An individual may not always know that his or her personal information has been collected for the primary purpose of direct marketing. Direct marketing to existing customers may involve communications designed to let customers know about new products or services.

26.2 The Privacy Act 1988 (Cth)does not define direct marketing. The Office of the Privacy Commissioner’s review of the private sector provisions of the Privacy Act (the OPC Review) described direct marketing as

The promotion and sale of goods and services directly to the consumer. Direct marketers promote their goods and services by mail, telephone, email or SMS. They compile lists of consumers and their contact details from a wide variety of sources. These include public records, including the white pages, the electoral roll, registers of births, deaths and marriages and land title registers. They also include membership lists of business, professional and trade organisations, survey returns, mail order purchase and so on.[2]

26.3 The Code of Practice of the Australian Direct Marketing Association (ADMA) defines ‘direct marketing’ as:

the marketing of goods or services or the seeking of donations through means of communication at a distance where:

(a) consumers are invited to respond using a means of communication at a distance; and

(b) it is intended that the goods or services be supplied under a contract negotiated through means of communication at a distance.[3]

26.4 This definition has been criticised, however, for failing to reflect the everyday meaning of the term ‘direct marketing’, because it requires a marketing communication to be at a distance, ‘whereas the everyday meaning would include a marketing communication that is not from a distance, such as one that is in person’.[4]

26.5 Direct marketing now represents over 32% of all media spending.[5] ADMA notes that ‘direct marketers and their suppliers employ over 660,000 Australians’.[6]

26.6 Direct marketing has been, and continues to be, however, the source of community concern. For example, in a recent survey commissioned by the OPC, 80% of respondents expressed concern or annoyance about receiving unsolicited direct marketing communications.[7] Such concerns were also reflected in the National Privacy Phone-In conducted by the ALRC on 1 and 2 June 2006, where 73% of calls identified as an issue of concern the receipt of unsolicited communication by way of phone, mail, fax, email and SMS.It is important to note that the community concern expressed in these surveys related to unsolicited direct marketing communications.

26.7 On the other hand, stakeholders made clear that there are pragmatic reasons why those engaged in direct marketing do not wish to communicate with those who do not want to receive direct marketing communications. The Mailing House stated that the industry ‘do[es] not wish to irritate the public, abuse the concept of privacy or incur expense on material that has little chance of influencing a response’.[8]

26.8 This chapter first considers whether the privacy principles should regulate direct marketing regardless of whether the personal information in question was collected for a primary or secondary purpose of direct marketing. It then discusses whether direct marketing should be regulated by a separate privacy principle. The chapter also considers whether the Privacy Act should regulate direct marketing by agencies. How the ‘Direct Marketing’ principle in the Privacy Act should relate to other legislation that deals with particular forms of direct marketing is considered. The content of the ‘Direct Marketing’ principle and the need for guidance from the OPC in relation to the ‘Direct Marketing’ principle is then discussed.

[1] Such publicly available sources include public registers, for example, state registers of births, deaths and marriages, as well as the internet. Historically, the electoral roll was used for the purpose of direct marketing. Restrictions on the use of the electoral roll for the purposes of direct marketing, however, were introduced by the Electoral and Referendum Amendment (Access to Electoral Roll and Other Measures) Act 2004 (Cth) sch 1, pt 1, [4]; sch 1 pt 3, [115]. That Act amended the Commonwealth Electoral Act 1918 (Cth) to extend the end-use restrictions to all roll information. The prohibition on using electoral roll information for commercial purposes applies ‘to all roll information, regardless of when it was obtained’: J Douglas-Stewart, Comprehensive Guide to Privacy Law—Private Sector (online ed, as at 14 March 2008), [98-243]. See also Commonwealth, Parliamentary Debates, House of Representatives, 1 April 2004, 27930 (P Slipper).

[2] Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 94.

[3] Australian Direct Marketing Association, Direct Marketing Code of Practice (2006), 8.

[4] J Douglas-Stewart, Comprehensive Guide to Privacy Law—Private Sector (online ed, as at 14 March 2008), [25-200].

[5] Australian Direct Marketing Association, Frequently Answered Questions (2007) <
asp/> at 7 April 2008
, 1.

[6] Ibid.

[7] Wallis Consulting Group, Community Attitudes Towards Privacy 2007 [prepared for the Office of the Privacy Commissioner] (2007), 29.

[8] The Mailing House, Submission PR 64, 1 December 2006.