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Explanatory note on unsolicited direct marketing telephone calls and faxes and how to avoid them
Introduction
Unsolicited direct marketing calls
Unsolicited direct marketing faxes
Registering with the TPS
Registering with the FPS
Complaints
Telephone Calls and Corporate Subscribers
Further information
Introduction
This note summarises the regulatory arrangements for such calls and faxes, and what subscribers can do to avoid them.
Unsolicited Direct Marketing Calls
Regulations, which first came into force on 1 May 1999, required the Office of Telecommunications (OFTEL) to introduce an "opt-out" scheme for individual subscribers. Oftel appointed the Direct Marketing Association (DMA) to run the opt-out scheme, which is called the Telephone Preference Service (TPS).
Under the Regulations, no one can make a direct marketing call to an individual subscriber who has either previously notified the caller that he or she does not want to receive such calls, or who has been registered with the TPS for twenty-eight days or more.
Furthermore, as part of all direct marketing calls, the caller must give their name and, on request, a freephone telephone number or address by which they can be contacted.
Unsolicited Direct Marketing Faxes
The sending of direct marketing faxes to individuals is banned under the Regulations, unless the individual has given their prior consent.
The Regulations also introduce an "opt-out" scheme primarily for corporate subscribers who do not wish to receive unsolicited direct marketing faxes. The DMA were also appointed by OFTEL to run this opt-out scheme, which is called the Fax Preference Service (FPS).
Under the Regulations, no one can send a direct marketing fax to a corporate subscriber who has either previously notified the sender that they do not want to receive such faxes, or who has been registered with the FPS for twenty-eight days or more.
Although individuals are covered by a blanket ban on unsolicited direct marketing faxes, they may also register with the FPS as an additional protection.
The Regulations also require that any direct marketing faxes that are sent must include the name and either the address of the sender or a freephone telephone number on which the sender can be contacted.
Registering with the Telephone Preference Service
Individual subscribers can register free with the TPS using the following contact details:
The Telephone Preference Service
DMA House
70 Margaret Street
London
W1M 8SS
Online: http://www.tpsonline.org.uk/
Telephone: 0845 070 0707
Fax: 0845 070 0706
by the Regulations all direct marketers are obliged to not call anyone whose number has appeared on the TPS list for twenty-eight days or more, unless the subscriber has given prior consent to being called.
Registering with the Fax Preference Service
Subscribers can register fax numbers free with the FPS using the following contact details:
The Fax Preference Service
DMA House
70 Margaret Street
London
W1M 8SS
Online: http://www.fpsonline.org.uk
Telephone: 0845 070 0702
Fax: 0845 070 0705
Similar to the TPS, direct marketers are obliged to not send a fax to subscribers whose number has been on the FPS list for twenty-eight days or more, unless they have the subscriber's prior consent.
Complaints
Apparent breaches of the Regulations should be reported to the TPS or FPS in the first instance if you have already registered, including as much information about the call or fax as possible. They will then contact the direct marketer concerned to make sure they are aware of their obligations under the Regulations, and make a record of the complaint.
This record is passed to the Information Commissioner's Office (ICO) at regular intervals. It is the ICO that are responsible for enforcement of the Regulations, and they will be taking action against direct marketers that they feel have wilfully or negligently continued to breach the Regulations despite having been informed of their obligations by the TPS or FPS. This action may lead to fines for persistent offenders.
In the case of an individual who has been sent a direct marketing fax without their prior consent, registration with the FPS is not necessary for this to constitute a breach of the Regulations. Individuals affected in this way can complain direct to the ICO using the following contact details:
Compliance Section
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
E-mail: mail@dataprotection.gov.uk
Telephone: 01625 545 700
Fax: 01625 524 510
Telephone Calls and Corporate Subscribers
Although corporate subscribers are unable to register with the TPS, they are protected under the Telecommunications Act 1984. This requires anyone running a telecommunications system in the UK to do so under a licence, and the majority of home and office telephones and fax machines are run under class licences. The provisions of these licences automatically apply to most telephone users, including companies of all kinds that sell their products using a telephone. These licences require anyone making this type of call to cease doing so on receipt of a written request* from the subscriber. Should further calls be received from the same direct marketer, subscribers can take the matter up with OFTEL at:
The Consumer Representation Section
Office of Telecommunications
Room 1/1
50 Ludgate Hill
London
EC4M 7JJ
Website: http://www.oftel.gov.uk/crs/conad.htm
Telephone (Lo-Call): 0845 714 5000
*As part of all direct marketing calls, callers must supply their name and if requested, their address or a freephone telephone number on which they can be contacted (back)
Further Information
The Regulations:
The issue of unsolicited direct marketing calls and faxes has been addressed under the Telecommunications (Data Protection and Privacy) Regulations 1999 ("the Regulations") which came into force on 1 March 2000, repealing and replacing similar provisions contained in the Telecommunications (Data Protection and Privacy) (Direct Marketing) Regulations 1998 which came into force on 1 May 1999. Both of these sets of Regulations form part of the implementation of the European Union's Telecoms Data Protection Directive (97/66/EC) in the UK. Part V of the Regulations deals with direct marketing calls and faxes.
The text of the Regulations is available on the Stationery Office website at the following URL:
http://www.legislation.hmso.gov.uk/si/
si1999/19992093.htm
Definitions Used:
The Information Commissioner's Office (ICO) is responsible for enforcement of the Regulations, and for interpretation where necessary. The ICO has issued guidance on the Regulations in which their interpretations for terms are given. The term "direct marketing" has been interpreted by the DPCO to cover not just the offer for sale of goods and services but also the promotion of an organisation's aims and ideals.
For the purposes of these Regulations, the term "individual" applies to private individuals and sole traders anywhere in the UK, and also to partnerships in England, Wales and Northern Ireland. Subscribers falling outside these groups constitute corporate subscribers.
The ICO guidance on the Regulations is available from the ICO website at http://www.dataprotection.gov.uk/ (follow the links for "guidance and other publications" then expand the link for "legal guidance" and select "telecoms guidance").
The Directive:
The Telecoms Data Protection Directive is available on the European Commission's website in PDF format at:
The Telecoms Data Protection Directive 97/66/EC (PDF format)
Hardcopies of all these documents are available on request from:
Mr Guy Russell
Communication and Information Industries Directorate
Department of Trade and Industry
151 Buckingham Palace Road
London
SW1W 9SS
Telephone: (020) 7215 1806 Fax: (020) 7215 4161 E-mail: guy.russell@dti.gsi.gov.uk
Author: Guy Russell
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