ACCAN Informed Consent Project (21 August 2009)

[« previous] [next »] [up] [title page] [full contents]

6.1. Potential for a more consistent approach to consent

The communications sector would benefit from the development of a consistent approach to obtaining consent across all communications laws and codes. This could be achieved by:

• Inclusion of a definition of consent in the Telecommunications Act and other relevant legislation;
• Inclusion of the same definition of consent in codes and standards and in the code development guides;
• Consistent guidance from TIO, TISSC and other relevant EDR schemes; and
• Development of a best practice guide to consent, built around the consistent definition, published by the Australian Communications and Media Authority (ACMA).

The key to achieving consistency will be to reach consensus amongst stakeholders concerning a basic definition / test of consent that is relevant for the communications sector.

A basic test might contain the following requirements:

• Consent must be voluntary
  The individual must have a genuine opportunity to provide or withhold consent; that is, they must be able to say ‘yes’ or ‘no’ without pressure or disadvantage.[37]
• Consent must be informed
  The individual must know what it is they are agreeing to. The individual needs to be aware of the implications of providing or withholding consent, having received the information in a way meaningful to them and appropriate in the circumstances. This may require additional confirmation of consent (e.g. double opt-in) for some products and services.[38]
• The individual must have the capacity to provide consent
  The individual must be capable of understanding the issues relating to the decision, forming a view based on reasoned judgment and communicating their decision. Organisations must consider best practice guidance on obtaining consent from specific consumer categories (e.g. young people and consumers with an intellectual disability etc.).
• Consent must be recorded
  A clear record of the consent must be made and retained by the organisation. Where consent is obtained orally the conversation should be recorded or confirmed by subsequent written consent.

This approach would capture current requirements in laws and codes (for both consumer issues and privacy issues) and provide a consistent base for contract formation, complaints management etc. across the entire consumer relationship, rather than the current ad hoc and inconsistent approach.

However, it is important to note that even if consent requirements are standardised ‘on paper’ there may still be issues with compliance. For example consent issues with MPS have been a significant concern despite detailed requirements in the MPS scheme. This was the result of a poor approach to monitoring and enforcement, rather than merely a weakness in the rules. Major changes to the compliance culture in industry and the enforcement culture by regulators may be required before significant benefits appear for consumers.

---

[37] Other similar guidance from the New Zealand Health Council Working Party on Informed Consent, 1989 states: ‘The consent must be voluntary. There should not be any pressure on the person to give their consent. No undue influence or duress should be present.’

[38] Other similar guidance from the New Zealand Health Council Working Party on Informed Consent, 1989 states: ‘Informed consent implies that enough relevant information is provided to enable a reasoned decision to be made, and that information was understood. Without understanding what is involved no one can make a reasoned decision.’

[« previous] [next »] [up] [title page] [full contents]

[full document] [download PDF version]

[up to research]