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This submission is Consumer Action’s response to the Privacy Act Review Discussion Paper, published by the Attorney General’s Department in October 2021.

We are responding solely to the proposals and questions relating to direct marketing, targeted advertising and profiling (section 16 of the Discussion Paper).

The Discussion Paper usefully sets out some of the privacy risks and harms associated with direct marketing, including a lack of transparency, the validity of consent, and individuals’ ability to exercise control. We consider, however, that the Discussion Paper somewhat underplays the extent of consumer harm, including in relation to lead generation.

In 2018, Consumer Action published a report, Dirty Leads – Consumer Action Law Centre – March 2018. This report found:

• The risks for consumers in the lead generation process are that they are disempowered, manipulated or misled. • The main disempowerment risk is that a person has not voluntarily and knowingly elected to share personal information for the purposes of receiving further contact about products or services. When marketing consent is hidden behind unrelated online activities, bundled with mandatory terms and conditions, is overly broad or simply not sought, consumers are denied their opportunity to protect their privacy and can lose control of how their personal information is used
• The distance between the online publisher and the lead buyer (sometimes with multiple intermediaries standing between them) can also obfuscate consent. If a publisher, who initially interacts directly with customer, doesn’t know how the lead will be used, how can a consumer give full and proper consent?  Lead generation does not offer a promise of consumer suitability and so there is no guarantee that the goods and services on offer through lead generation activities are appropriate to an individual’s circumstances.

Like all marketing, lead generation uses skilled advertisers and salespeople to influence consumer decision making. Case studies in the report demonstrate that while a product may be personalised and presented as a compelling offer, lead generation can lead to situations where consumers feel manipulated into purchasing products or services that are ill-suited to their situation. Consumer manipulation can also occur earlier in the lead lifecycle where people’s behavioural biases are exploited in order to source the lead. An offer of free goods or a chance to win prizes or money can deflect attention from the marketing consequences that will arise.

Read the full submission (PDF).