America’s ‘Do not call’ cold calling opt out system is a baby at 4 years old compared to the UK’s middle aged Telephone Preference Service, but have our ex colonial friends shown us the way in terms of how such systems should be operated?
Topic: US Do-Not-Call and UK Telephone Preference-a tale of two systems
Who: UK Information Commissioner's Office and US Federal Trade Commission
Where: London and Washington D.C.
When: Summer 2006
As the UK's data privacy watchdog, the Information Commissioner's Office ("ICO"), announced that in over two and a half years it had not taken formal enforcement action against a single infringer of "do not call" rules introduced in December 2003, the US Federal Trade Commission ("FTC") reported that by end 2004, it had filed a total of 14 cases alleging violations of America's do-not-call laws and reached settlement in 10 of them.
In terms of numbers signing up with "Do not call" registers to not receive cold marketing calls, by end 2005 more than three quarters of US adults (more than 100 million) had registered their primary numbers on the national Do-Not-Call register. This from a standing start in mid 2002.
On this side of the Atlantic, our statutory equivalent, the more pompously named "Telephone Preference Service," has been around a good deal longer, since 1999 and until recently had failed to fire similar interest amongst the UK public.
Slow start for UK TPS accelerates
A 2005 BT television campaign featuring Jeremy Clarkson and offering a "Privacy" product including registration of users with the TPS changed all that, despite the fact that registration had for years already been available free to all individual subscribers. Now registrations are in excess of 12 million and with the UK's current adult population standing at around 48 million, industry pundits predict that we may arrive at the current US position by as early as 2010.
Scot Nats and Sir Sean Connery fall foul
The story is very different when it comes to enforcement, as we highlight above, although there has been one high profile enforcement action against a telemarketer by the ICO. This was not in respect of violations of TPS rules (Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 ("PECRs"), but an alleged breach of Regulation 19 of the PECRs. This relates to use of automated calling systems to transmit pre recorded marketing communications.
As previously reported on marketinglaw, during the last general election in 2005, the Scottish National Party sought to drum up votes by calling floating voters using automated calling systems. The call consisted of a recorded message from Sir Sean Connery urging the recipient of the call to vote SNP.
Such practices for marketing purposes are forbidden by Regulation 19 without prior opt in consent. Such consent had not been obtained here and the ICO took enforcement action against the SNP after it denied liability on grounds that this was not "marketing" and Regulation 19 did not apply to political parties.
The case went before the Information Tribunal in the spring of 2006, who threw out the SNP defence, finding no reason to exclude political parties seeking votes from the ambit of the regulations.
Why this matters
With the runaway "success" of the US Do-Not-Call system and the paucity of UK TPS enforcement action to date (although the ICO do say they had "written to" organisations in 1,754 cases by summer 2006) it is no wonder that US telemarketers, increasingly no doubt using VoiP, looking to these shores.
However US cold callers do not need to worry about UK enforcement. As a recent DTI response to a Parliamentary question confirmed, the UK's TPS laws do not apply to overseas callers dialling UK telephone numbers unless they are calling on behalf of UK companies.
o:So overall it's a patchy picture for UK telemarketers and sometimes long suffering cold callees. However, regardless of our relatively toothless laws so far as overseas callers are concerned, marketinglaw believes that both compliant UK telemarketers and consumers would benefit from a bit more bite in terms of ICO enforcement action