ACCAN Informed Consent Project (21 August 2009)

3. Current consent arrangements

Industry practice regarding the collection of consent is very diverse and inconsistent. The following table summarises the consent process in a selection of common communications products:

Product / Service	Process for obtaining consent	Timing of consent	Information provided
Optus – Consumer Terms	Written signature on application form	Prior to payment / provision of service	34 pages of detailed terms and conditions
Optus – Consumer Terms – Summary of Cable Internet Service	Written signature on application form	Prior to payment / provision of service	4 pages of detailed terms and conditions
Premium Services: BigPond Sport on Your Mobile	Subscribe online (enter mobile number) then follow link in SMS.	None	None
Premium Services: B4U – Mobile Horoscopes	Online subscription (enter mobile number and tick box next to service)	Concurrent with payment / provision of service	Short paragraph of terms online.
Premium Service: Planet Three	Menu selection on handset	Prior to payment / provision of service	1 page of brief terms and conditions online
Premium Service: Sky News Now	Enter SMS Code	Concurrent with payment / provision of service	2 pages of terms and conditions with unsubscribe instructions.
Premium Service: SMSFun	Immediate subscription via web page	Concurrent with payment / provision of service	2 pages of terms and conditions with unsubscribe instructions.
Premium Service: So You Think You Can Dance ‘Season Pass’	Enter SMS code	Concurrent with payment / provision of service	1 page of brief terms and conditions online
Premium Services: Sydney Morning Herald	Enter SMS Code and send to premium number	Concurrent with one off charge	1 page of frequently asked questions
Premium Services: Telstra Ringtone Subscription	Enter SMS Code	Concurrent with payment / provision of service	One paragraph online with costs – link to how to unsubscribe
Premium Services: V8 Supercars Alerts	Enter SMS Code	Concurrent with payment / provision of service	Short paragraph of instructions.
Telstra – General Terms for Consumer Customers	Written signature on application form	Prior to payment / provision of service	31 pages of detailed terms and conditions with links to additional information (e.g. privacy policy)
Telstra BigPond – Customer Terms for Particular Premium Services	Consumer entering SMS code is treated as consent Can subscribe to some services by calling the call centre.	Concurrent with payment / provision of service	57 pages of general terms and conditions in a general notice Some additional notice by SMS depending on service selected
Three – Customers Terms for Services (Standard Form of Agreement)	Written signature on application form	Prior to payment / provision of service	4 pages of general terms and conditions
Virgin Broadband – General Terms	Written signature on application form	Prior to payment / provision of service	27 pages of detailed terms and conditions
Virgin Mobile – Mobile (Pre-Paid and Postpaid) Services Description	Written signature on application form	Prior to payment / provision of service	26 pages of detailed terms and conditions
Vodafone – Terms and Conditions – Mobile Plans	Written signature on application form	Prior to payment / provision of service	17 pages of detailed terms and conditions

The key issues in relation to current industry practice in obtaining consent include:

There is a trend away from obtaining written signatures on application forms, towards oral consent (to a call centre) or electronic consent via a website or SMS activation;
There are very few circumstances where electronic consent is recorded effectively (for example there is no simple mechanism available to save or print out a confirmation of the consent);
The full terms and conditions of the agreement are often not provided to the consumer;
There is an enormous diversity in the amount of information provided, ranging from no information to 57 pages;
Where terms and conditions are summarised into one paragraph (common for SMS activated services) key information may be missing;
There are some circumstances where a consumer is taken to have consented before they could reasonably have done so (note: this issue appears to be limited to MPS and may therefore be addressed by the new approach to MPS regulation and the use of double opt-in);
Most processes for obtaining consent rely on English language proficiency;
There are virtually no processes in place to assist consumers with special requirements during the consent process; and
There are virtually no processes in place to identify capacity issues when obtaining consent (such as the age of the applicant).





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