ACCAN Informed Consent Project (21 August 2009)

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4. Generic consumer issues

• 4.1. Capacity
• 4.2. Absence of consent
• 4.3. Lack of informed consent
• 4.4. Flawed consent process
• 4.5. Summary table

Consumer organisations, regulators and external dispute resolution (EDR) schemes all report a significant rise in complaints and inquiries regarding consent issues in the communications sector.

The scope of this current research project was limited by time and resource constraints. A short survey was designed to capture key consent complaints data in the sector. Seventeen organisations participated, including the Telecommunications Industry Ombudsman (TIO),[10] the Australian Competition and Consumer Commission (ACCC)[11] and the Department of Broadband, Communications and the Digital Economy (DBCDE)[12] – all of whom receive a high volume of communications sector complaints. In addition, a diverse range of community advocacy organisations, legal services and casework agencies responded to the survey.

Participating organisations reported a total of 40,400 complaints (in the 2007/2008 year) where consent was an issue in the communications sector. The vast majority of these were eventually dealt with by the TIO (38,200).

Data collection was limited by the inability of many organisations to easily distinguish consent complaints, so this figure may under-represent the true volume of consent complaints. Some major organisations (including the Office of the Privacy Commissioner and CHOICE) were unable to participate in this survey due to data categorisation issues, although they may be able to provide data for future research if a longer timeframe is provided for responses.

Although there were limitations in the data collection for this Research project, the number of consent complaints (40,400) is still very significant. It easily dwarfs the number of consent complaints in any other sector (e.g. health, financial services).[13]

These consent complaints can be broken down into four common categories:

• Capacity;
• Absence of consent;
• Lack of informed consent; and
• Flawed consent process.

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[10] <http://www.tio.com.au>

[11] <http://www.accc.gov.au>

[12] <http://www.dbcde.gov.au>

[13] Note that in the health context 2.1% of complaints relate to consent; Health Care Complaints Commission, Annual report 2007-08, HCCC, Sydney, 2008, p. 24, <http://www.hccc.nsw.gov.au/html/AR07_08.htm>.

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