TELEMARKETING: Your Number’s Up - Stephen Groom looks at what the European Union’s latest directive on telecoms entails and how its consumer protection provisions could affect the direct marketing industry

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 direct marketing.

Lately there has been a rash of European legislation affecting

direct marketing.



So, to start with, let’s get it clear what ’Directive 97/66/EC’ is

not.



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

calling machines.



Where such methods are aimed at companies, the directive requires only

that the companies’ ’legitimate interests’ are ’sufficiently

protected’.



The Government is still considering whether this means they can leave

the existing, very limited, legal controls alone or whether they should

be tightened.



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

calling systems.



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

consumer’s name.



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

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