Nuisance Calls Action Plan shows that the government wants to strengthen the regulatory environment for direct marketing by enabling regulators to work together and for the ICO to issue monetary penalties for breach of the rules.
On 30 March 2014, the Department for Culture, Media and Sport launched its Nuisance Calls Action Plan. 'Nuisance calls' are defined as unwanted and unrequested telemarketing calls, including 'live' and automated messages, abandoned and silent calls. The Plan recognises that nuisance calls are irritating and annoying for consumers and can cause real anxiety and fear for vulnerable people. Recent research by Ofcom shows that the majority of consumers receive nuisance calls and the number of complaints remains high. For instance, in 2012/13, the Information Commissioner's Office (ICO) received over 150,000 complaints, although this number is now falling.
The Plan suggests the problem of nuisance calls has worsened in recent years due to the expansion of the data industry, the reduction in the cost of making marketing calls, wider use of caller identity blocking technologies and the internationalisation of communications networks. It sets out the actions the government and its regulators will take to reduce the impact of nuisance calls on consumers. Key points include:
- Improving data sharing: currently, live and automated calls are regulated by the ICO, and abandoned and silent calls are regulated by Ofcom. The government wants to improve how the regulators work together, and has announced that it will introduce regulations to enable Ofcom to share information about companies with the ICO. At present, this information sharing is only permitted with the consent of the company concerned. The government's proposal will mean that Ofcom can share such information with the ICO without needing to obtain consent. This is likely to come into force in October 2014.
- Increasing the effectiveness of the TPS: live and automated calls are governed by the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Among other things, PECR prohibits the making of unsolicited marketing calls to people who have registered their number with the 'Telephone Preference Service' (TPS). The ICO and Ofcom are jointly reviewing the effectiveness of the TPS, and are expected to publish their findings later this year. The Plan welcomes this review and the October 2013 launch of 'TPS Assured', an audit and certification scheme run by the TPS for direct marketing companies. As part of the scheme, telemarketers are audited for their compliance with PECR, Ofcom guidance and a handbook containing industry best practice, and once certified can use the TPS Assured logo.
- Consulting on making it easier for the ICO to issue monetary penalties: since 2011, the ICO has had the power to impose monetary penalties of up to £500,000 for serious breaches of PECR. On 3 April, the ICO announced that it had imposed monetary penalties totalling over £1,000,000 for breaches of PECR (this figure includes penalties relating to spam texts as well as nuisance calls). However, the legal test for a monetary penalty under PECR is that the breach must be "of a kind likely to cause substantial damage or substantial distress". In 2013, the Information Tribunal overturned two monetary penalty notices relating to the sending of spam text messages, because although there was evidence of repeated breaches of PECR (with very large numbers of text messages being sent), the Tribunal ruled that the effect of the text messages on individuals did not meet the threshold of substantial damage or substantial distress. The government has announced that it intends to consult later this year on lowering this threshold. The ICO's preferred test would be where a breach is likely to cause 'nuisance, annoyance, inconvenience or anxiety'. Whilst it is unlikely that this change will become law for some time, the government has shown its intention to lessen the requirements for issuing monetary penalties.
- Setting up a task force to review consumer consent: under PECR, a company is permitted to call an individual who has registered with the TPS if that individual has notified the company that s/he does not object to receiving calls for marketing purposes. The Plan recognises that individuals are often not aware that they have provided such a notification (particularly where it is obtained through third parties), and supports the ICO's direct marketing guidance, published in autumn 2013, which provides practical guidance on this point (see paragraphs 74 to 85). Whilst the government does not give its explicit backing by consumer rights group Which? for the proposal of a statutory time limit of one year on consents obtained through third parties (the ICO's guidance is more nuanced, but includes a general rule of thumb that organisations should not to rely on any indirect consent given more than six months ago), the government has announced that Which? will convene a task force to review consent and lead generation issues. The task force will report later in 2014, and its conclusions are likely to be significant for the direct marketing industry.
In summary, the Plan demonstrates that the government is committed to strengthening the regulatory environment for direct marketing calls by making it easier for regulators to work together and for the ICO to issue monetary penalties to those breaching the rules. Any organisation that is involved in direct telephone marketing will need to take a close interest in this area in the coming months to ensure that their marketing activities remain fully compliant.