COMMS ALLIANCE CALLS FOR SAFE HARBOUR FROM ‘QUADRUPLE JEOPARDY’ IN SCAMS PREVENTION FRAMEWORK

Sydney, 8 October 2024: Communications Alliance, the peak body of the telecommunications industry, has called for safe harbour from ‘quadruple jeopardy’ liability in the draft Scams Prevention Framework (SPF) legislation.

“Telcos have been at the forefront of the fight against scams, blocking more than 2 billion scam calls and almost 700 million scam messages since 2020,” said Luke Coleman, CEO of Comms Alliance. “Telcos already have an industry code regulated and enforced by the ACMA, which requires telcos to identify, trace, block, report, and disrupt scam calls and messages.”

Under the draft framework, telcos are subject to as many four concurrent enforcement mechanisms and could face penalties even when they comply with an industry code – creating a ‘quadruple jeopardy’ of liability.

“If a telco complies with the industry code, it should have safe harbour from enforcement under the three other avenues of liability – the ACCC, the Australian Financial Complaints Authority (AFCA), and potential legal action through the courts,” Mr Coleman said.

“Communications Alliance supports the Government’s ambition to limit scams across all sectors of the economy, including banking and digital platforms. Our proposed changes would make the framework more clearly enforceable, more flexible, and would better protect consumers without exposing industry to undue liability,” Mr Coleman said.
Under the draft legislation, a telco could be subject to liability across:

1. Sector regulator: The ACMA can be designated as the telecoms sector regulator, responsible for registering and enforcing the industry’s SPF code;
2. General regulator: The ACCC would continue to regulate the telecoms sector in relation to the SPF principles and any other provisions not in the code;
3. External Dispute Resolution scheme (EDR): The Australian Financial Complaints Authority (AFCA) as the designated EDR; and
4. Civil action: by SPF consumers through the courts, including potential class action.

Under Comms Alliance’s proposed amendments, safe harbour would not apply if a telco was found to be in breach of the industry code, and could then be subject to enforcement action or compensation through other mechanisms.

“There are positive signs that actions by Government and industry are starting to turn the tide against scammers. Financial losses to scams decreased by 13% between 2022 and 2023, the median amount lost to scams decreased by 50%, and reporting of scams increased by more than 18%. But there is more to do, and the telecommunications industry is keeping up the fight against scammers,” he said.

The SPF must be supported by stronger technical measures to fight scams, and CA has called for the accelerated implementation of the SMS Sender ID Registry and reforms to rights of use for telephone numbers in concert with the SPF legislation.
“The telecoms industry has already instituted a range of technical measures to fight scams, and these will be bolstered by new SMS Sender ID requirements which will prevent scammers from pretending to be toll road operators or banks when sending messages to consumers,” Mr Coleman said.

The legislation should also clarify that consumer complaints about scams should solely be handled by the designated EDR, AFCA, to prevent potential duplication of complaints to other EDRs such as the Telecommunications Industry Ombudsman (TIO).