The Information Commissioner’s Office has issued ‘Preliminary Enforcement Notices’ naming Toucan Telecomm, Zenith Windows, Carphone Warehouse and four others for allegedly ignoring TPS opt outs But when does a customer relationship override a TPS registration and de-override it?
Who: The Information Commissioner's Office, Toucan Telecomm, Carphone Warehouse, Talk Talk Telecom, Bowater Windows, Staybrite Windows, Zenith Windows and Bowater Home Improvements
Where: Wilmslow, Cheshire
When: August 2006
Data protection watchdog The Information Commissioner's Office ("ICO") issued "Preliminary Enforcement Notices" on seven businesses who were allegedly breaching cold calling laws.
The ICO said it had little option but to take this step after "informal requests" had not produced the desired results.
In the year to July, the ICO received 67 complaints about Toucan, 46 about Carphone Warehouse and Talk Talk and 31 about Bowater Group (Zenith, Staybrite and Bowater companies listed at "Who" above). Overall, 39,941 complaints were made to the TPS between January and September 2006, compared with 54,380 for the whole of 2005 (which seems to us to be a pro rata improvement on 2005). As of August 2006, there were 13.3m phone numbers registered with TPS.
What the Regulations say
Under Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003, a person must "neither use, nor instigate the use of, a public electronic communications service for the purposes of making unsolicited calls for direct marketing purposes where:
(a) the called line is that of a subscriber who has previously notified the caller that such calls should not for the time being be made on that line; or
(b) the number allocated to a subscriber in respect of the called line is [on the TPS list]."
Para 4 of Regulation 21 states "where a subscriber who has [registered his number with the TPS] has notified a caller that he does not, for the time being, object to such calls being made on that line by that caller, such calls may be made by that caller on that line, notwithstanding that the number allocated to that line is [on the TPS list]."
Para (5) goes on to say
"Where a subscriber has given a caller notification pursuant to paragraph (4) in relation to a line of his-
(a) the subscriber shall be free to withdraw that notification at any time, and
(b) where such notification is withdrawn, the caller shall not make such calls on that line."
A spokesperson for Carphone Warehouse was quoted by DM Bulletin as stating "TalkTalk fully adheres to the Data protection Act and makes every attempt to screen all marketing calls against the Telephone Preference Service mailing list. We are working closely with the ICO with their enquiries."
The "Preliminary Enforcement Notice" notifies the recipient that it is the intention of the ICO to serve a full-blown Enforcement Notice requiring compliance with Regulation 21. The ICO is currently considering the responses received from the seven recipients and if it is not satisfied with any of these, an Enforcement Notice will be served. If this is served and not complied with, the ICO can institute a prosecution.
Why this matters:
The ICO has made it clear that other cases are also under investigation and further warnings may be issued. This demonstrates an upping of the watchdog's act in this area, whilst at the same time underlining the cumbersome and long-winded procedure the ICO is currently having to follow, with informal requests, formal warnings, enforcement notices, prosecutions and potentially appeals from any finding at the end of the prosecution.
No wonder the ICO has for years now been pressing the government for stronger powers.
Overriding TPS registrations
Another aspect is the common misunderstandings as to how a TPS registration may be overridden and "de-overriden."
Regulation 21 (4) and (5) make it clear, however, that once a number goes on to the TPS, the default must be not to call, unless the subscriber has since clearly "notified" the caller that he does not object to receiving unsolicited marketing calls from that particular caller.
In this context, it may not be enough that the individual has simply become a customer of the caller since registering the number in question with the TPS. The ICO will likely be looking for more explicit indications, for instance by way of disclosures and suitable use of ticked opt in boxes, that the caller has been "notified" of the subscriber's new-found receptiveness to cold calls.
De-overriding TPS registrations?
As for "de-overriding" a TPS registration, again the Regulations are clear that the individual can "withdraw" the notification or opt in at any time and revert to "no cold calls".
However unlike in the case of commercial email, there is no requirement that an "unsubscribe" opportunity must be given every time an "opt-inner" is subsequently communicated with, either by telephone or any other medium. This means that marketers looking for legal minimum compliance rather than best practice, will seek to minimise the overt opportunities given to those who have previously overridden their TPS registration to change their minds.