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On the case - January 2007

January 2007

What are the consent issues for telemarketing?


European data protection law gives individuals (and some business people) the right to prevent direct marketing approaches. When it comes to the telephone channel, this right can be exercised by the individual signing up to a Do Not Call or Telephone Preference list or by notifying the company directly that they do not want unsolicited calls.


Recent regulatory action by the UK’s Information Commissioner has emphasized the need for outbound telemarketers to be sure that they can accommodate both of these routes to withhold consent.


Five companies have been issued with Enforcement Notices by the Information Commissioner’s Office (ICO) for making unsolicited calls to individuals without their consent.


Some of the companies, it seems, were not cleaning telemarketing lists against the UK’s Telephone Preference Service. This is a legal requirement under the Privacy and Electronic Communications (EC Directive) Regulations 2003. The only exemption from this rule is if the individual has given clear “consent” to the calls. This consent has to be obtained by telling the individual that calls will ensue and giving an opportunity to opt-out (or opt-in if the company concerned wants positive consent). Even if an individual has given consent it is only “for the time being” and can be withdrawn at any time.


Other transgressions which the ICO has highlighted pertain to individuals asking companies directly to stop calling. Four of the companies that received notices had adopted the practice of asking callers to ring another number if they did not want to be called again. This was regarded as a deliberate barrier to prevent the consumers from withdrawing consent. The ICO commented:-


“The [Enforcement] Notices make it clear that this practice is unacceptable; it is the responsibility of the company making the calls to ensure it holds accurate records of those people who do not wish to be called.”


Finally, a further company was censured for making automated recorded calls to individuals. The regulations state that these calls can only be made where the individual has opted-in to receiving them.


It is likely that this is only the beginning of an increased pattern of enforcement in the arena of outbound cold calling. UK DMA statistics show that this form of marketing is regarded as the most intrusive of the direct channels and, it is consumer complaint which generally drives the ICO to take action.

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