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VIC Set Up Auto Dialler - Legal in Victoria?

Discussion in 'Commercial Law Forum' started by Victoria Point, 25 October 2014.

  1. Victoria Point

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    I intend to set-up an auto dialler on a silent number, with a pre-recorded polite and informative message. I will anonymously and simultaneously notify multiple staff, on their advertised numbers, at the headquarters of the fitness club that runs the gym in our building. The notification will advise, in real time as its happening, of a noise disturbance to building residents, created by weight lifters dropping weights in their gym. The announcement will also ask to have the noise stopped now.

    Would this action be legal and not a breach of privacy in the state of Victoria?

    If not what part is illegal under commercial law?

    Thanks.
     
  2. Victoria S

    Victoria S Well-Known Member

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    Hi @Victoria Point
    Will you check that the numbers you intend to call are not listed on the Do Not Call Register?
    Have a look at https://www.donotcall.gov.au/faqs.cfm for further information about what you can and cannot do.

    Would would it be a one time thing? Or multiple calls? Have they opted in to receive the calls?

    If you're not considered to be telemarketing above, then you sound like you may have an issue with:
    section 474.17 of the Criminal Code Act 1995 (Cth) – using a carriage service to menace, harass or cause offence.

    474.17 Using a carriage service to menace, harass or cause offence
    (1) A person is guilty of an offence if:
    (a) the person uses a carriage service; and
    (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
    Penalty: Imprisonment for 3 years.
    (2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:
    (a) an employee of an NRS provider; or
    (b) an emergency call person; or
    (c) an employee of an emergency service organisation; or
    (d) an APS employee in the Attorney‑General’s Department acting as a National Security Hotline call taker.


    You can also see the CDPP "Cybercrime" page.

    If I was receiving multiple automated calls from a silent number, I would consider it harassing per the Criminal Code. I might think differently if I signed up to receive occasional automated calls and there was a process by which I could opt out or unsubscribe from receiving those calls.
     
    Worldly1 likes this.
  3. Victoria Point

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    Many thanks for the response, appreciate your comments and links. I’ve posted some answers to your questions

    1. I believe the numbers are not on the “do not call register” as the numbers in question are all on the company’s web site as commercial numbers and NOT used or maintained primarily for private purposes, and therefore illegible to be entered on the “do not call register”..

    2. The calls would only be as frequent as the weight dropping noise disturbance. (generally 6am-8.30pm many times daily) The point being that as the perpetrator of the noise disturbance to residents we wish our real time advice to highlight to their management the date time and frequency of the disturbances we are suffering at their hand. These numbers find the people who have the power to act responsibly and stop the noise; the calls would only ever follow the noise.

    3. While they have not opted to receive these calls they have advertised the numbers on their web site as their contact numbers for outside communication.

    4. These are not telemarketing calls, these are notification calls.

    5. I’m sure they consider all our attempts thus far to have them stop the noise, as harassing their business. From our side, we would NOT consider this to be a “using a carriage service to menace, harass or cause offence”, rather we would consider this to be using a carriage service to advise and notify, of their noise disturbance causing offence.

    6. I have recently received similar message notification calls over multiple days from a bank, advising of changes to credit card processes. While somewhat annoying I didn’t see it as harassing. It was this that gave me the idea.

    7. Despite my feelings, I do think your raising section 474.17 of the Criminal Code Act 1995 (Cth) – (using a carriage service to menace, harass or cause offence.) Is very relevant if reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. You considered it was and I suspect that in the eyes of the recipients they will consider it as being harassment, despite it being a notification them having the power to do their job and stop the noise and thus the calls., however, could you confirm if section 474.17 of the Criminal Code Act 1995 (Cth applies to ALL calls or just to calls to (a) an employee of an NRS provider; or (b) an emergency call person; or (c) an employee of an emergency service organisation; or (d) an APS employee in the Attorney‑General’s Department acting as a National Security Hotline call taker ?

    Thanks
     
  4. Victoria S

    Victoria S Well-Known Member

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    In response to your question in point 7 - Section 474.17 applies to all persons - its a broad section.
    Subsection (2) doesn't limit subsection (1).
     
  5. Victoria Point

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  6. Rod

    Rod Well-Known Member

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  7. Sarah J

    Sarah J Well-Known Member

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    Hi Victoria,

    If your aim is to inform the gym that they are disturbing residents in the building and to get them to reduce their noise levels or add noise-buffering insulation to their walls (or some other means to fix the problem), I would perhaps recommend contacting your local council and complaining about the noise levels. I would also contact the managers in this building. If other residents in the building also share your complaint, I would start a petition and bring this to both the council and the building manager. Of course, I would attempt to speak with the gym first about the noise issue. Recordings of the noise levels (better if they actually measure decibels) would help your case.
     
  8. Tim W

    Tim W Lawyer

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    I am not satisfied that the Do Not Call Register is relevant here.
    You can do that with a diary. Or a sound recording.
    What you propose with the phone calls is quite likely to amount to harassment.
    To suggest that this somehow makes them "fair game" is a nonsense.
    The concept of "notification calls" in the way you use the term
    is unknown to the law in this area.
    What you think about it is irrelevant. And in any event, mistaken.
    These are not similar at all.
    Those calls are bona fide communications with existing customers (some of which can have a basis in a legal duty by the bank).
    And therefore irrelevant to what you propose.
    This is irrelevant.

    Look, your underlying purpose here is something to the effect of

    "Maybe if we cause them as much inconvenience as we are suffering,
    perhaps we can force them to do something."

    To my mind, that is almost textbook harassment.

    While I hear your your frustration, I feel bound to say
    that what you propose is beyond foolish, and would, in my view,
    almost certainly amount to using a carriage service to harass,
    for which you could face prosecution.
     

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