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Ad Code Must Respect Web Culture

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Tuesday 15 December 1998

ROGER CLARKE

Moves by the Australian Direct Marketing Association (ADMA) to have its draft Code of Practice ratified by the Australian Consumer and Competition Commission (ACCC) have sparked a chorus of protests from industry and consumer privacy groups.

A meeting of the Commission late last month heard submissions from a wide range of interested parties all opposing the document's acceptance because of the lack of protection it provides for members of the public.

Not only is ADMA attempting to rush this document through the authorisation process without any public consultation, but the central premise relating to consumer privacy and protection is based on a faulty understanding of the Internet and how it works.

Since IT professionals are employed by direct marketing companies to facilitate the use of information technology for telesales and electronic marketing, the ACS is concerned with ensuring their conduct is aligned with recognised principles of consumer protection and privacy protection.

ADMA's draft Code purports to cater for the interests of consumers by proposing that "equivalent protection" should exist for individuals within the electronic arena as is currently required by companies conducting marketing campaigns via telephone and direct mail.

However, the concept of equivalent protection makes no allowance for the fundamental differences between traditional modes of direct marketing and the Internet, raising the question of whether ADMA appreciates or even understands the nature of the technology its members may use.

These differences relate both to the cost of using the Internet and culture that prevails online.

The cost of sending a letter through the traditional mail network must be met by the sender, as is the cost of making a telephone call, although in both cases there are costs to the receiver in terms of time and interruptions.

However, different rules apply to the Internet, where both the sender and receiver face access costs which are measured in terms of the time spent online or, increasingly, by traffic and data storage requirements.

While a simple email message might not require much space or time to download, the growing trend by marketers towards using images, sound grabs and even video in electronic direct mail will churn up enormous amounts of bandwidth and take much longer to download.

Not only will the very act of downloading this unsolicited mail impose a financial cost on the receiver, but there is considerable potential to delay or interrupt the receipt of other emails for which the recipient is waiting, with no way of prioritising the different messages prior to download.

What's more, large unsolicited messages can easily lead the recipient's mailbox to overflow, causing the service to fail and subsequent legitimate mail to be lost. Multiple deliveries could even cause an Internet Service Provider's storage allocations to overflow, resulting in a collapse of services relied upon by thousands of users.

If ADMA has its way, its concept of equivalent protection could entrench the right of direct marketing companies to spend consumers' money on messages they haven't requested and probably don't want, imposing serious service-quality risks on consumers and their service providers. It is untenable that this be allowed to remain in any Code authorised by the ACCC.

ADMA argues that consumers should have the option to request that they not receive unsolicited commercial e-mail, ie. they advocate an opt-out model. Our view is that any authorised code should only allow for the sending of such material to consumers who specifically request it, ie. an opt-in model.

The other issue ADMA has failed to appreciate is the non-commercial culture that prevails on the Internet. While commercial ventures do of course exist and often experience considerable success, the Internet's roots as an academic community continue to influence the attitudes of even new users today.

The first thing individual users tend to do when they go online is to email family members and friends or participate in Web chat forums, newsgroups or networks like IRC and ICQ. Most see the commercial aspects of the Internet as secondary and many actively resent the recent intrusion of e-commerce.

Marketers who fail to appreciate the very different psychological and sociological context involved in Internet commerce will inevitably fail in this domain since a much softer sell is required.

The ACS believes there is already a growing level of disquiet within the public arena about the increase of unsolicited telemarketing calls being made to private residences and the quantity of "junk mail" being delivered to peoples' homes.

The application of similar principles to Internet marketing creates the potential for significant inconvenience, both in terms of time and financial cost, for individuals targeted by electronic marketers.

With Deputy Commissioner, Allan Asher, due to make a determination in this matter within the next few weeks, the ACS is calling for the ACCC to reject the proposed Code.

The ACS submission states that there is insufficient public interest to support the adoption of the code because of the inadequacy of the provisions dealing with electronic communications.

Commercial groups must not be allowed to dictate how Australian consumers spend their time and money.

We are joined in this call by entities such as the Australian Privacy Foundation, Australian Consumers Association, Consumers Federation of Australia, Electronic Frontiers of Australia, the Internet Society of Australia and many more.

Dr Roger Clarke FACS is a long-standing member of the ACS Community Affairs Board's Economic, Legal and Social Implications Committee and drafted the ACS submission to the ACCC.

To contact the ACS, call on 1800 626 029, email: info@acslink.net.au or visit the ACS Web site