Who: Which? Nuisance Calls and Texts Task Force on Consent and Lead Generation
When: December 2014
Where: London
Law stated as at: 8 December 2014
What happened:
Following mounting concerns over a rising tide of cold calls and spam texts and the publication in November 2013 of an All Party Parliamentary Group (“APPG”) Report into Nuisance calls, Ed Vaizey, the Government Minister for the Digital Economy, asked Which? to convene a taskforce to review consent and lead generation issues in the direct marketing industry.
The task force’s membership included ICO, Ofcom, the DMA and the Ministry of Justice, although strangely absent was the CMA. The task force has not been idle. By October 2014 it had formulated draft recommendations for action and in early December fifteen final recommendations were published.
There are recommended actions for businesses, for industry bodies and regulators and for government.
Here are some highlights.
Actions for businesses
- Businesses should treat compliance with the law on consumer consent to direct marketing as a board level issue.
- Organisations engaging in marketing should as a minimum commit to implementing ICO’s Direct Marketing Guidance on collecting and buying in data.
- In particular businesses relying on third party consent should satisfy themselves that the consent was not obtained more than six months before it is first used.
Actions for regulators
- ICO to offer a model approach, tested on consumers, to privacy notices and consumer communications which exemplify best practice, including wording for opt-in, opt-out, third party consent and information on controlling and revoking consent.
- ICO to offer clear guidance that consent for marketing practices should always be separate from consent for other business practices. If consent for marketing is a precondition for a consumer offer, for example when entering a competition, it must be made clear how this transaction can be completed without providing consent for marketing.
- Ofcom should assess current consumer awareness of the Telephone Preference Service (“TPS”) for both fixed and mobile phone users. Based on the results it should consider whether more should be done to increase this, for instance by renaming the TPS and finding other channels to promote the service such as engaging consumers with TPS when they sign a new mobile phone contract.
Actions for government
- Review the ability of the ICO to hold to account board-level executives who fail to comply with rules and guidance on the use of consumers’ personal data for marketing purposes and amend legislation as necessary.
- In conjunction with evidence and recommendations from the Competition and Markets Authority and other regulators, consider how future legislation, particularly at European level, might be used to tackle nuisance marketing.
- The DCMS should review the Nuisance Calls Action Plan in Spring 2016, assess progress with implementing the fifteen recommendations and consider the need for further steps.
Why this matters:
In November 2014 alone, more than 15,000 complaints were made to the ICO about spam texts and nuisance calls, with 100,000 complaints over the last year. Clearly action is overdue, although some might say all that is really needed is greater appetite and resources for the enforcement of existing rules.
How many of these recommendations are implemented and what impact they will have remains to be seen. ICO for one may say that it has already laid down clear guidance in a lot of these areas, with model opt in and opt out wordings for example.
As regards changes in the law, with a general election looming there have to be limited prospects of these in the near term. However, Ministers seem committed to actioning by early 2015 the related proposal to lower the threshold for ICO monetary penalty notices of up to £500,000 for Privacy and Electronic Communications Regulations violations for nuisance calls and spam texts.
The full recommendations and task force report are here.
