Explicit Informed Consent: What does it actually mean?

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Explicit informed consent is a ubiquitous term in the energy industry and is found in the national energy retail rules as well as in the Victorian energy law. The penalties for a retailer failing to obtain explicit informed consent can be significant, but what does the term actually mean?

Explicit informed consent is a key protection and it is critical to ensuring that customers are confident engaging in the energy market,”…The AER takes any failure by retailers to meet this obligation very seriously, and will take enforcement action in appropriate cases.” – AER Board Member Jim Cox.

The consequences of non-compliance

The Australian Energy Regulator (AER) has taken action against energy retailers who failed to obtain EIC.

“In 2015, the Federal Court ordered by consent that EnergyAustralia Pty Ltd (EnergyAustralia) pay penalties of $500 000 for failing to obtain the explicit informed consent of customers.

In separate concurrent proceedings brought by the ACCC, the Federal Court imposed penalties of $1 million on EnergyAustralia and $100,000 on its telemarketing agent Bright Choice, after finding that they had made false or misleading representations to consumers.

In 2017, Simply Energy paid penalties of $60 000 for failing to obtain explicit informed consent before entering customers into new contracts. Simply Energy previously paid penalties of $80 000 in 2015 in relation to alleged breaches of the explicit informed consent obligations in 2014.”

– Source: https://www.aer.gov.au/news-release/simply-energy-fined-60000-for-alleged-failure-to-obtain-consent-before-switching-customers

What is needed for explicit informed consent?

There are three critical components of explicit informed consent.


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