Telstra takes an opt-out tack

Telstra looks like it is flagrantly disregarding the Australian Communication Authority’s (ACA) spam guidelines by forcing an opt-out of corporate e-mail and marketing material on users of its new online DVD service.

Australia's Spam Act 2003 provides strict guidelines and penalties to protect customers from receiving spam and ensures users only receive marketing material after they opt-in and agree to receive such e-mail.

The new fetchmemovies online DVD service, along with BigPond Music, is Telstra's latest attempt to become the one-stop-shop for consumer entertainment.

However, the new online service goes against best practice for compliance, according to Anthony Wing, ACA's antispam team manager, by forcing customers to opt out if they don't want to receive marketing material via e-mail.

The service’s public registration Web site, located at contains one option for receiving “e-mail news and special offers for fetchmemovies and related products and services” and another for “e-mail news and special offers for other Telstra products and services”.

Both these options are pre-selected.

“We strongly suggest that people have to opt-in as the legislation says it’s necessary to have consent,” Wing said. “And we’re certainly of the view that a person has to take action [for consent] and you cannot infer consent from silence.”

Wing said although the Act does not specifically state that tick-boxes on Web sites cannot be pre-selected, it is specific about the terms “express” and “inferred” consent where the latter implies that in an ongoing relationship the customer could expect to receive marketing material.

“Consent requires an active step [for example] to tick a box,” he said. “Casual purchases, for example groceries, is not considered an ongoing relationship. Either way it’s good practice to opt-in.”

At an Australian Direct Marketing Association spam seminar earlier this year, ADMA’s manager of legal and regulatory affairs, Jodie Sangster detailed the difference between express and inferred consent when it comes to adding contact details to a marketing list.

“Express consent requires an ‘active step’ on the part of the recipient, such as ticking a box to receive marketing material,” Sangster said. “Inferred consent, however, is based on a reasonable expectation that a customer will receive marketing messages as in the case of an existing relationship. For example, online banking creates an expectation that the bank will send you marketing material whereas buying a t-shirt does not involve a relationship.”

Fetchmemovies’ marketing director John Giro said the new venture, launched earlier this year, is “certainly across” the new legislation and everything was “put past legal”.

“We will only provide e-mail to registered users that relates to their use of the service, for example, if their DVD selections are low,” Giro said. “There are no plans in the short term to promote any other part of Telstra through fetchmemovies.”

Giro said the new service is concentrating on customer service levels and the backend systems and will increase its marketing activities later this year.

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Rodney Gedda

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