How do the Regulations apply to fax marketing?
The Regulations duplicate the 1999 Regulations for marketing by fax.
However, as a reminder, this is what the law requires:
- You must not send or instigate the sending of an unsolicited marketing fax to the line of an individual subscriber without their prior consent (Regulation 20(1)(a) applies).
- You must not send or instigate the sending of an unsolicited marketing fax to the line of a corporate subscriber if that subscriber has asked you not to fax on that line (Regulation 20(1)(b) applies).
- You must not send or instigate the sending of an unsolicited marketing fax to a number listed on the Fax Preference Service (FPS) register (Regulation 20(1)(c) applies).
- FPS registration takes 28 days to come into force. Faxes may be sent to a subscriber’s number during the registration period unless an opt-out request has also been made to the caller (see 2 above) (Regulation 20(4) applies). If the subscriber is an individual subscriber, you must not do so unless you have their prior consent (see 1 above).
- You may send unsolicited marketing faxes to an FPS-registered subscriber if the subscriber has notified you that, for the time being, they do not object to receiving such calls (Regulation 20(5) applies).
- A subscriber may withdraw that overriding consent at any time, in which case, you must not send further marketing faxes to that number (Regulation 20(6) applies).
- You must provide your identity (the name of the business being promoted) and a valid business address or Freephone telephone number at which you can be contacted on each fax you send (Regulation 24(1)(a) applies).
- A subscriber must not allow their line to be used to breach Regulation 20 (Regulation 20(3) applies).
What is the FPS?
The Fax Preference Service (FPS) list is a statutory list of telephone numbers where the subscriber to that number has registered a general objection to receiving unsolicited marketing faxes on that number.
We delete numbers from our database whenever we get an opt-out request. Are we doing enough?
No. You must suppress details when you receive an opt-out request, not delete them. If you delete them, you have no record to show you should not fax that number. You or your subcontractor might collect it again from a list broker. The only way you can legally fax that number again is if the subscriber tells you directly they have changed their mind and are now happy to hear from you again. If you use subcontractors, you must ensure they screen against your suppression list and ensure they don’t fax numbers registered on the FPS.
We pay a subcontractor to send faxes for us. Isn’t it their responsibility to make sure we don’t break the rules?
No, under the Regulations it’s your responsibility. They may be contractually obliged to ensure you don’t break the rules but if they let you down, you are responsible under the Regulations as the person who instigated the sending of a fax. If we were to take enforcement action, we would usually take it against you and not your subcontractor. You should check you have appropriate contracts to guard against such failures. If your subcontractor’s failures cause you to break the rules, seek legal advice about an action for breach of contract and find another subcontractor who will make sure you don’t break the rules.
The ICO could take action against subcontractors who allow their lines to be used in breach of the Regulations (Regulation 20(3) applies) but this is more likely if the subcontractor and their clients work together to disregard the Regulations. It is unlikely that this would apply, for example, to fax marketing activities conducted by an individual working at home on commission on behalf of a company using contact lists it provides. This is because the individual could not be expected to know all the company’s legal obligations.
If the subcontractor is sending faxes on our behalf, do they have to provide their identity or ours?
They must provide your identity and a valid address or Freephone number at which you can be contacted with an opt-out request.
We have bought or rented a list of fax numbers where the subscribers have consented to receiving unsolicited marketing faxes from third parties. Some of the numbers are FPS registered – can we fax them?
FPS registration indicates a general objection to receiving unsolicited marketing faxes. The FPS list is a statutory list. Subscribers can give consent to receiving unsolicited marketing faxes from a caller, which overrides FPS registration, but this is only valid if that overriding consent is given to the particular caller.
If you obtain a list of numbers where you are assured that the subscribers consent to receiving unsolicited marketing faxes, you should make sure you screen the list against the FPS list and your own suppression list before sending any marketing faxes. If you buy or rent a list, regardless of the assurances you have been given, you will still breach the Regulations if you call a number that is listed on the FPS.