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opinion

Blog: Nuisance no more

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Article Tags:
opinion

David Flint

Last week, the Information Commissioner’s Office (ICO) fined a Glasgow based firm £80,000 for making over 109,000 nuisance calls to people registered with the Telephone Preference Service (TPS). David Flint explains the case.

What happened?

The infringing company, Xternal Property Renovations Ltd (the company) made a total of 109,726 unsolicited calls to subscribers who had registered with the TPS. Between the period of August 2015 and April 2016, the ICO received over 130 complaints in relation to the company on the basis of unlawful direct marketing calls.

What is direct marketing?

Direct marketing is a communication (by any means) of any advertising or marketing material which is directed to particular individuals. Direct marketing is not limited to advertising goods or services for sale and also includes promoting an organisation’s aims and ideals (i.e. raising support, donations or fundraising). The reference to “any means” covers not only the traditional forms of communication such as telephone, e-mail and post but also social media and texts.

What is the TPS?

The Telephone Preference Service (TPS) is a register of phone numbers of subscribers who have notified the TPS that they do not wish to receive unsolicited calls for direct marketing purposes. Essentially, TPS allows individuals to ‘opt-out’ of receiving marketing calls. Businesses who carry out direct marketing by telephone can subscribe to TPS for a fee and receive a monthly list of numbers on the register.

What did the ICO say?

The ICO fined the company £80k and issued them with an Enforcement Notice preventing the company from using (or instigate the use of) a public electronic communications service for the purposes of making unsolicited calls for direct marketing purposes where the called line is that of:

  • a person who has previously notified the company that such calls should not be made on that line; and / or

  • a person who has registered their number with the TPS at least 28 days previously and who has not notified the company that they do not object to such calls being made.

    • Ken Macdonald, Head of ICO Regions in Scotland commented on the decision and noted: “Nuisance marketing, whether it’s by calls to people’s landline or mobile, or through spam texts, causes disruption, annoyance and, in the worst cases, serious upset. We issue fines like these to firms behind nuisance marketing to send a clear message that such action will not be tolerated” (available here).

    Planning a marketing campaign?

    • If your organisation is planning a marketing campaign – make sure it complies with the rules on privacy and data protection. Some may argue that the company got off lightly in this case with a £80k fine, as the ICO can issue a monetary penalty of up to £500k.

    • Screen the list of people your organisation plans to contact against the TPS register and don’t contact them by telephone if they are on it. As well as the TPS there are an array of other preference services including: (i) the mail preference service; (ii) the fax preference service; and (iii) the e-mail preference service. If the individual isn’t on a preference service but informs you that they don’t want to be contacted for marketing purposes, then don’t contact them.

    • Make sure that your campaigners know the law. You need the consent of the individual to contact them for the purposes of direct marketing and you need their consent to contact them by that specific means of contact - express opt-in consent is required for electronic marketing communications whereas direct mail can be sent with implied consent or on the basis of the legitimate interests condition – at least until May 2018.

      • Blog: Nuisance no more

      • David Flint is a partner at MacRoberts.

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