Who: House of Commons Culture, Media and Sport Committee
When: 27 November 2013
Law stated as at: 31 December 2013
The House of Commons Culture, Media and Sport Committee have published a report on nuisance calls. It contains a number of recommendations aimed at clarifying the situation and providing an effective customer-facing body for complaints.
The Committee states that, “The challenge we face is one of curtailing nuisance calls and texts for marketing purposes and fraud while at the same time allowing legitimate marketing practices and unsolicited calls made for good reason.” The MPs say they have sought to balance the interests of individuals with those of businesses by allowing bona fide and compliant marketing practices to continue.
The committee consulted with a number of bodies such as Which?, the Direct Marketing Association and ICO alongside representatives of the telecoms industry such as BT. This has resulted in the following recommendations:
The Committee did not go so far as to recommend a complete ban on cold calls. They stated that they can be made for legitimate reasons such as calls by emergency services, medical practitioners, pharmacists, elected politicians, candidates for elections, charities and companies with whom the recipient has a genuine relationship.
However, the Committee found that inadvertent and uninformed consent by consumers to nuisance calls occurs too easily, for example through consenting to terms and conditions which contain provisions allowing the company to contact the consumer directly.
The report states that unfair trading of data is a breach of the Data Protection Act 1998 and the ICO should take action to curb this practice. The report also urges the ICO to act against companies who repeatedly contact those on the Telephone Preference Service (TPS) list when there is no clear and direct business relationship which might allow them to do this without first consulting the TPS list of numbers that have been opted out of receiving such calls.
Although the Committee was not persuaded by the argument that there should be a fixed expiry date for third party consents, they suggested that organisations should be in a position to demonstrate that they have an individual’s consent to making calls if they chose to make such calls without checking with the TPS.
The Committee approved of the idea that there should be a review of TPS by Ofcom and ICO and considered that more companies would be encouraged to become TPS licensees if the annual fees for small companies were reduced.
The report encourages mobile phone network operators and handset manufacturers to develop technology to filter out unwanted text messages. The Committee remained unconvinced by BT’s need to charge for the caller display service and recommends that the government legislates to proscribe the withholding of caller ID in telephone calls for marketing or establishing marketing leads.
Instead, companies should be encouraged to promote technical options to screen, curtail, block and report nuisance calls.
The report indicates that Ofcom should help with the creation of landline short code nuisance call reporting services.
Complaints, regulation and enforcement
The report suggests that there should be a single, straightforward online complaints form and nuisance calls helpline. The Committee has also recommended that service providers put systems in place to facilitate the tracking of nuisance calls.
In response to calls from ICO, the report urges that the threshold for the imposition of monetary penalty notices up to £500,000 under s.55A of the Data Protection Act 1998 should be lowered to cover telephone calls or texts “likely to cause nuisance, annoyance, inconvenience or anxiety,” in place of the current threshold which is, inter alia, “likely to cause substantial damage or substantial distress.” They have also suggested that ICO should have the power to impose monetary penalties repeatedly on habitual offenders.
The Committee approved of the government plans to amend s.393 of the Communications Act 203 to permit Ofcom to share information about nuisance call complaints with ICO and stated that Ofcom should consider extending the application of its persistent misuse powers to cover all direct marketing calls.
However, the Committee stated that there would be no obvious benefit in reorganising the current regulatory environment and no pressing case for a single nuisance calls regulator. The Direct Marketing Commission (“DMC”), which enforces the DMA Direct Marketing Code of Practice, had put itself forward for such a role, but in support of the DMC the Committee felt that the DMC would have more influence if it were given greater authority to share relevant information with the DMA and TPS.
Why this matters:
In essence, these recommendations suggest that Ofcom and ICO should use their powers more effectively and that the telecoms industry should introduce new technology to deal with nuisance calls.
These technical solutions should be provided at no extra cost to the consumer. However, it remains to be seen whether telecoms companies will seek to invest in these areas without the ability to pass these costs onto consumers.
The suggested changes would create a one-stop-shop for consumers to address their complaints about nuisance calls as compared to the current situation whereby ICO deals with any misuse of data and complaints about silent or abandoned calls fall under Ofcom’s remit.
The recommendations echo those first made by MPs in October 2013.
They also come ahead of the government’s New Year consultation into nuisance calls, which is expected to lower the threshold for the ICO to act, perhaps in line with ICO’s and the Committee’s suggestion.