How do the Regulations apply to telephone marketing?
The Regulations restate the 1999 Regulations with respect to marketing by telephone, with two significant changes. First, from 11 December 2003, corporate subscribers have had an enforceable right to opt out of receiving marketing calls, which they can exercise by asking the caller to stop making further marketing calls to a particular number or particular numbers. Second, and with effect from 25 June 2004, corporate subscribers have been allowed to register their numbers on the Telephone Preference Service (TPS).
This is what the law requires:
- If any subscriber has told you to stop making telesales calls to their number, you must comply with that request (Regulation 21(1)(a) applies).
- You must not make or instigate the making of unsolicited telesales calls to any number listed on the TPS register (Regulation 21(1)(b) applies).
- TPS registration takes 28 days to come into force. Calls may be made to a number during the registration period unless an opt-out request has also been made to the caller (see 1 above) (Regulation 21(3) applies).
- You may make or instigate the making of unsolicited telesales calls to a TPS-registered subscriber if that subscriber has notified you that, for the time being, they do not object to receiving such calls on that TPS-registered number (Regulation 21(4) applies).
- A subscriber can withdraw that overriding consent at any time, in which case, further telesales calls must not be made to that number (Regulation 21(5) applies).
- You must identify yourself when making a telesales call. If asked, you must provide a valid business address or Freephone telephone number at which you can be contacted. When using a subcontractor, the subcontractor’s call centre staff must identify the instigator of the call (that is, the organisation on whose behalf they are making the call) (Regulation 24(1)(b) applies).
- Subscribers must not let their lines be used to contravene Regulation 21 (Regulation 21(2) applies).
What is the TPS?
The Telephone Preference Service (TPS) list is a statutory list of telephone numbers where the subscriber to that number has registered a general objection to receiving unsolicited marketing calls on that number. From 25 June 2004, corporate subscribers have been allowed to register their numbers on the Corporate Telephone Preference Service (CTPS). See our guidance for more information on the rules about calling corporate subscribers.
Does TPS registration apply to mobile numbers?
Any mobile number can be registered on the TPS to block unwanted ‘live’ calls. If you wish to market by text, picture or video message, you do not need to screen against the TPS but you need prior consent before sending such messages. The rules on marketing by text, picture or video message are covered in the Electronic mail section of this guidance.
We pay a subcontractor to make the calls for us. Isn’t it their responsibility to make sure we don’t break the rules?
No, under the Regulations it’s your responsibility as the instigator of the call. They may be contractually obliged to make sure you don’t break the rules but if they let you down, you are responsible under the Regulations as the person who instigated the call. If we were to take enforcement action, we would usually take it against you 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 21(2) applies), but this is more likely to happen where the subcontractor and their clients work together to disregard the Regulations. It is unlikely that this would apply, for example, to telemarketing activities conducted by an individual working at home on commission on behalf of a company, using telephone lists it provides. This is because the individual could not be expected to know all the company’s legal obligations.
Do the rules mean our call centre staff have to give out their names?
No. The rules mean they have to give out the name of the company whose products or services they are promoting. If asked, they must also provide a valid address or freephone number at which the company can be contacted with an opt-out request.
If the subcontractor is making the calls on our behalf, do they have to provide their identity or ours?
They must provide your identity because you have instigated the call; the call would not be made unless you paid for it to be made. If asked, your subcontractor or their call centre staff must provide a valid address or freephone number at which you can be contacted with an opt-out request.
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 that you should not call that number. You or your subcontractor might collect it again from a list broker. The only way you can legally call that number again is if the subscriber tells you directly that they have changed their mind and are now happy to hear from you again.
If you use subcontractors, you must make sure they don’t call numbers on your suppression list or numbers registered on the TPS.
Several members of a household use the same telephone number and may make different choices about who they want to hear from. How does the law apply?
If the subscriber to that phone line (that is, the person who pays the bill) has registered the number on the TPS, this indicates a general objection to receiving any unsolicited marketing calls on that number. This objection applies to the whole household but does not apply to calls that are ‘solicited’.
Individual members of the household may invite (solicit) marketing calls from different companies, but those calls may only be made to the individual who has issued the invitation, not to other members of the household. This invitation can be revoked at any time.
Individual members of the household may also have existing relationships with a number of companies, which pre-date TPS registration. Unsolicited marketing calls from those companies may be a feature of that relationship. If the individual members of the household wish to prevent marketing calls from any of those companies, they must each contact the company concerned directly to inform them they no longer wish to receive marketing calls from them.
We have bought or rented a list of numbers where the subscribers have consented to receiving unsolicited marketing calls from third parties, but some of the numbers are TPS registered. Can we call those numbers?
TPS registration indicates a general objection to receiving unsolicited marketing calls. The TPS list is statutory. Subscribers can give consent to receiving unsolicited marketing calls from a caller, which overrides TPS 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 calls, you should make sure you screen the list against the TPS and your own suppression list before making any telesales calls. 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 listed on the TPS.
We would like to call existing customers who are registered on the TPS. Can we do so?
It depends. The Regulations say you may make marketing calls to a number registered with the TPS if the subscriber has notified you that they do not object to receiving such calls. See our guidance on calling existing customers.
We are a charity / We are a fundraiser / We lobby for particular causes. Do we have to screen against the TPS when we conduct a telephone campaign?
Yes, you do. There is no exemption from the TPS rules for not-for-profit organisations. The ICO regards the term ‘direct marketing’ as covering a wide range of activities which will apply not just to the offer for sale of goods or services, but also to the promotion of an organisation’s aims and ideals. This would include a charity or political party making an appeal for funds or support and, for example, an organisation that encourages individuals to write to their MP on a particular matter or to attend a public meeting or rally.
We only do business-to-business telesales and have a list of established contacts we regularly call; do we need to screen our list against the TPS list?
Are they all contacts to whom you regularly make a sale? Are you sure that any sales calls you make to those numbers would be welcomed? If so, you do not need to screen the list against the TPS or CTPS. You should remember that if those contacts change their mind and tell you they no longer wish you to call them, you are legally obliged to respect that request. Make sure you suppress rather than delete their numbers.
In any other case, you should screen the list against the TPS and CTPS lists.
We have a list of business-to-business telephone contacts we call regularly. They haven’t told us to stop calling them before now, but we haven’t sold anything to them yet. Do we have to screen our list against the TPS lists?
Yes, unless you can satisfy yourself that all those contacts would be happy to hear from you. If a company registers their numbers on the TPS list, that suggests they are unlikely to respond positively to telesales calls. If you have not had a positive response from that company in the past and they are registered on the TPS, it would be difficult for you to show they would be happy to hear from you in the future. Unless you screen against the TPS list, if they have registered their numbers on the TPS list and you call them, you risk breaching the Regulations (and damaging your reputation).
We have a mix of established and potential business-to-business telephone contacts on our list. Do we still have to screen it against the TPS lists?
Yes. You should note our comments above about established contacts.
One of our potential business-to-business contacts has now registered their numbers on the TPS. Since then, one of their other employees has expressed an interest in our products and asked us to call with a quotation. Can we call that employee?
Yes, that would be a solicited call. TPS registration prevents unsolicited calls. If you want to make subsequent unsolicited calls to that company, you should explain the situation to your new contact at the company and ask them whether they wish to consent on their employer’s behalf, which would override TPS registration. You should make a note of details of the conversation in case you are challenged in the future.
How do we know whether a person is authorised to give consent on their employer’s behalf?
Unless you have reason to think they would not be authorised, you can take their authorisation in good faith. You may wish to take a note of their name and the date the authorisation was given.