From Friday 25 June the new statutory cold call opt out scheme for company numbers has been in force. We report on Guidance from the Information Commissioner on the new ‘Corporate Telephone Preference Service’ and key questions raised at a DMA briefing session.
Who: The Information Commissioner and the Direct Marketing Authority
When: June 2004
From Friday 25 June, the UK has a statutory Do not call list for B2B telemarketing, as reported previously on marketinglaw-see Preview.
On the eve of the introduction of the new rules, which make it a breach of law to make an unsolicited marketing phone call to any limited company's telephone number that is registered on the statutory Do not call list, the Information Commissioner's Office has published Guidance on the new system and the Direct Marketing Association held a key briefing.
The Guidance is contained in an updated version of the existing "Guidance to the Privacy and Electronic Communications (EC Directive) Regulations 2003" at http://www.informationcommissioner.gov.uk/eventual.aspx?id=96
There is also a separate introductory Q&A note from the ICO.
An early read of both is highly recommended, but here we will focus on few key questions, and answers, arising from these and the DMA briefing.
What is a telemarketing call?
In the Q&A note, the ICO asks what is a telemarketing call. This is any call where the caller is promoting their goods and services or their aims and ideals and includes fundraising calls.
The ICO goes on to say that a call to check contact details is unlikely to constitute such a call and in the DMA briefing session on 21 June an ICO spokesperson also indicated that a market research call would not be caught by the new rules.
The ICO introductory note makes it clear, however, that marketers should not try to circumvent TPS by using such a call as a lead into a marketing call.
Possible to make future calls "solicited" at the end of a market research call?
Having to check the new B2B Do not call list or "Corporate Telephone Preference Service" (CTPS) is an administrative burden and has a cost (between £50 and £3750 depending on what grade of list access you plump for-more details available from the Direct Marketing Authority, which has been sub contracted by OFCOM to operate the CTPS –see www.tps-online.org.uk ).
But remember that the list only has to be accessed if the intended call is a B2B marketing call (as opposed to one to check contact details or conduct market research for example) and unsolicited. So life will be much easier if the call is "solicited."
At the DMA briefing session on 21 June a delegate asked if "solicited call" nirvana could be achieved by
· making an unsolicited market research call (which of itself does not according to the ICO need prior CTPS screening) and then
· at the end of the call asking if the recipient of the call would mind receiving future unsolicited calls for specified marketing purposes
The clear ICO answer was "Yes" that would be OK provided care was taken to ensure that no marketing message was conveyed during that initial call and provided of course, for the caller's own self defence purposes, a detailed record was kept in each case of what was said to the call recipient and what their answer was.
What about calls made from an offshore location?
On 21 June a question was raised as to whether unsolicited B2B marketing calls to UK recipients would be caught by the new rules at all if they were made from an offshore location.
The clear answer from the ICO was that they would still be caught if the calling process was instigated by a UK entity.
How about calls from a UK contact centre instigated by an offshore client?
So if the CTPS screening obligation arises when the call instigator is in the UK, can the rules be sidestepped by ensuring that the instigator is resident outside the UK?
The answer here was "No" if the call was actually made from a UK location. Why? Because Regulation 21 (2) of the 2003 Regulations clearly states that those who "permit" their lines to be used for the purposes of making direct marketing B2B calls will also be caught by the regime.
A UK contact centre calling on behalf of a non UK client will in the view of the ICO be "permitting its lines" to be used for a relevant purpose and CTPS screening will be needed.
Calling numbers of businesses, including limited companies, partnerships and sole traders
If my call list is a general business list and includes numbers of sole traders and partnerships as well as limited companies, is it enough to screen against the new B2B Do not call list?
The clear answer here is "No." There has been a statutory Do not call list regime for direct marketing calls to sole traders and partnerships ("Original TPS list") for a while and this will continue in force as a separate list.
This means that if numbers are of sole traders and partnerships as well as limited companies, the only way telemarketers can ensure compliance is to screen against both the Original TPS list (paying the separate charges for this) and the new CTPS list (paying the going rate for this also).
Why this matters:
This and many other questions are dealt with in the ICO Guidance, but once the system is up and running, there will doubtless be more. B2B telemarketers will clearly be on a steep learning curve.
Perhaps the only saving grace is the indication by the ICO that it will be lenient in the initial stages. But telemarketing businesses need to familiarise themselves with the new regime as soon as possible so that as and when the ICO gets tougher, they will not be in the firing line!