Agency: Fallon London
By STEPHEN GROOM, a partner in solicitors, campaignlive.co.uk, Friday, 26 June 1998 12:00AM
Lately there has been a rash of European legislation affecting
So, to start with, let’s get it clear what ’Directive 97/66/EC’ is
It is not the high-profile Data Protection Directive due for
implementation in October 1998 by the much-talked-about Data Protection
Act 1998. It is also not the much-debated Distance Selling Directive,
due for implementation in June 2000. No, this particular directive,
called the Telecoms Data Protection Directive or TDPD for short,
concerns ’the processing of personal data and the protection of privacy
in the telecommunications sector’.
Signed by the Council of EU Ministers on 15 December last year, the TDPD
has sneaked up on the inside, sheltered behind the publicity given to
other related pieces of Euro legislation, and sprung itself on the
unsuspecting direct and telemarketing industry with an implementation
date only four months away. What’s more, in the UK, it is likely to have
a much greater impact on how the industry goes about its business than
either of the other two directives just mentioned.
The first plank of the TDPD is that without an individual consumer’s
prior consent, it will be illegal for direct marketers to contact
consumers by either unsolicited faxes or auto-dialling or automated
Where such methods are aimed at companies, the directive requires only
that the companies’ ’legitimate interests’ are ’sufficiently
The Government is still considering whether this means they can leave
the existing, very limited, legal controls alone or whether they should
So, what about the Direct Marketing Association’s only recently
introduced Fax Preference Service? So far as individual consumers are
concerned, its fate is unclear, but if it is felt that the FPS can be
changed without too much difficulty from the present ’opt-out’ system
(where those wishing not to receive unsolicited faxes must take the step
of notifying the FPS) to ’opt-in’. It could be that the Government will
propose converting the FPS into a statutory scheme.
Fax and automated telemarketers could be obliged to join and to send
faxes only to those individual consumers who have made it clear they are
happy to receive unsolicited marketing messages by fax or automated
The second important change relates to all other types of unsolicited
calls for direct marketing, including telemarketing and e-mail.
Here again, approaches to businesses are different from those to
consumers and it will be up to the Government to decide whether more
controls are required to ensure businesses’ legitimate interests are
sufficiently protected against cold calls and e-mail.
Where individual consumers are the marketer’s target there is again an
element of choice for the regulators. Provided the system is free to the
consumer and it is rendered unlawful for marketers to disregard it,
either an ’opt-in’ or ’opt-out’ system can be chosen. Clearly, the
industry’s preference is ’opt-out’ and the DTI’s recent consultation
paper suggests it is sympathetic.
It goes so far as to list the basic requirements of a statutory
’opt-out’ system, namely that all telephone users should be aware of it,
that it must be simple and free to join, that it must become effective
within a reasonable time after joining it, that telemarketing companies
should update lists regularly in the light of consumers’ notifications
and have adequate complaints-handling mechanisms.
The system might also allow consumers to identify particular
organisations from which they would be willing to receive unsolicited
calls, for example charities.
Other significant TDPD changes likely to impact on direct marketers
include the requirement that telephone subscribers have a right to
indicate that their personal data, as it appears in a publicly available
telephone directory, may not be used for the purposes of direct
marketing. This might be shown by means of an asterisk against the
Consumers must also have the right to have part of their address omitted
from public telephone directories, as opposed to the all-or-nothing
options UK consumers are currently offered. The DTI consultation paper
is concerned, how-ever, that giving the consumer carte blanche as to
what details should be omitted could be counterproductive by leading to
more misdirected calls.
A limit is likely, therefore, on the amount of information that may be
left out, probably the house number or house name.
The timing for implementation of the TDPD is tight and the DTI is
determined to meet the deadline set by the Directive. The public
consultation period expired on 1 June, draft regulations will be
published in July and the final regulations look likely to be introduced
and in force by 24 October 1998.
As it is such a rush job, modifying the existing DMA Telephone
Preference Service so as to give individual consumers a legal right not
to receive cold calls has its attractions.
If this is the choice, however, there will be a need to take the TPS to
a different level, given that there are currently only 200,000 names
registered and - according to industry estimates - only eight out of the
top 20 telemarketing agencies operate or support it.
Whatever option is chosen, a system of compulsory registration for all
telemarketers, e-mail and fax marketers and obligatory adherence to
guidelines is just around the corner - and it won’t end there.
The Distance Selling Directive contemplates a similar regime for
mailings to consumers by 2000 and again the DMA’s sterling work in
setting up the Mailing Preference Service should provide the template
for a statutory ’opt-out’ scheme. Nominations, please, for the post of
Registrar of the National Marketing Preference Commission!
This article was first published on campaignlive.co.uk