The Privacy and Electronic Communications (EC Directive) Regulations 2003 set out UK law regarding the rules of electronic marketing by organisations that undertake marketing telephone calls and send unsolicited marketing messages by way of electronic means such as telephone, fax, email and SMS messages to individuals and businesses.
The regulations states that all organisations including charities, voluntary organisations and political parties do not make marketing calls to individuals and organisations unless they have their consent to do so.
Under this legislation, it is a legal requirement that organisations do not contact individuals or businesses that have registered their legal entitlement to not receive unsolicited telephone sales calls. Marketing calls should also not be made by any organisation where individuals and other organisations have made a direct request to not receive them. Marketing calls do not include genuine market-research calls or silent calls.
Silent calls occur when automated telephone diallers call multiple telephone numbers to individuals and organisations and there is no actual person available to talk to the recipient. Silent calls do not fall under the Privacy and Electronic Communications Regulations as no marketing message has actually been sent.
Unsolicited marketing transmitted by automated telephone calls must also have the prior consent of the recipient and must state the callers’ identity. Automated marketing calls are pre-recorded marketing messages that are made to telephone numbers where the recipient is unable to speak to an actual person. They usually take the form of a recorded message played to the recipient when they answer the telephone.
The prior consent rule states that individuals and organisations do not need to register their entitlement to not receive such messages. Prior consent must be given by individuals and organisations to marketers in order to receive such messages. Permission could be obtained in the form of applying a tick in a box to receive such marketing messages on an agreement form where an organisation has previously had commercial dealings with individuals and organisations.
Unsolicited marketing material sent by way of electronic mail such as email, SMS text and picture messaging should only be sent if an individual has consented to receive such mail unless the individuals’ details have been obtained through a commercial relationship and the marketing is for similar related products or services.
Commonly known as ‘soft opt-in’. Individuals and organisations should be able to opt out from receiving electronic marketing at any time by contacting the organisation directly. The organisation must comply with this request promptly.
The prior consent rule also applies to electronic marketing mail. Individuals do not need to register to not receive such messages. Individuals must also be given the opportunity to opt out from receiving such mail every time they receive electronic mail and mail should contain the senders details. Unfortunately, this section of the regulations do not apply to organisations that may receive electronic marketing messages, although messages should still identify the senders details.
Most bulk ‘spam’ is sent from outside the UK. If you have a general problem with spam sent from overseas there is little that can be done to stop the problem. However, individuals can speak to their internet service provider (ISP) for advice on spam filters or visit the Information Commisioner’s Office (ICO) website regarding spam emails for general advice.
The regulations only apply to spam sent from within the EU and not the bulk of spam which most people recieve that usually comes from outside the EU. The ICO is working with its European counterparts and the US to try to reduce spam. There is currently no legislation to cover spam sent to business addresses. The regulations also include rules regarding organisations using calling-line identification, ‘cookies’ and directories.
Also known as ‘browser cookies’ or ‘tracking cookies’, cookies are small, usually encrypted text files located in browser directories. They are used by web developers to help users navigate their websites efficiently and perform certain functions.
The Regulations include controls on the use of cookies or similar devices on websites and individuals must be provided with clear information about the purposes of the information being collected about them and given the opportunity to refuse the storage of and access to that information.
Marketing faxes should not be sent to individuals unless they have their prior consent to do so or to individuals that have objected to receiving them. However, if organisations do not want to receive marketing faxes they are required to register their legal entitlement to not receive such faxes. Marketing faxes should contain the senders contact details and give recipients the opportunity to stop receiving such faxes.
Information Commissioner’s Office (ICO)
The Information Commissioner’s Office or the ‘ICO’ is the UK’s independent authority set up to uphold, enforce and regulate the Privacy and Electronic Communications Regulations as well as the Data Protection Act, the Freedom of Information Act and the Environmental Information Regulations.
The ICO resolves complaints from individuals that think their rights may have been breached and enforces legal sanctions against organisations that ignore or refuse to adhere to their legal obligations. The ICO makes rulings on eligible complaints and takes the appropriate action when organisations are in breach of the law.
The Information Commissioner’s Office (ICO) has legal powers to ensure that organisations comply with the requirements of the Privacy and Electronic Communications Regulations. It is important to note that these powers are focused on ensuring that organisations meet the obligations which these regulations impose.
If the Information Commissioner finds an organisation in breach of the Regulations an Information Notice requesting further information or an Enforcement Notice will be issued to the organisation. A fine may be imposed for breach of an Enforcement Notice. Criminal sanctions may also be imposed. All of these actions can damage the reputation of an organisation and adversely affect the goodwill of its customers.
Statutory Opt Out
Individuals and organisations can register with the Telephone Preference Service (TPS) if they do not wish to receive unsolicited marketing calls. Individuals and organisations can register their objection to receiving unsolicited direct marketing faxes by registering their number with the Fax Preference Service (FPS). For more information about the TPS please contact:
The Telephone Preference Service
DMA House
70 Margaret Street
London
W1W 8SS
T: 0345 070 0707
The Fax Preference Service
DMA House
70 Margaret Street
London
W1W 8SS
T: 0345 070 0702
Your Concerns
If you think the Privacy and Electronic Communications Regulations have been breached by any support publishing firms you have received communications from you should report these concerns to the ICO immediately in order for action to be taken. You can call the ICO helpline for advice about what you can do to resolve the matter on 0303 123 1113 or by using the link we have provided below.
If you have contacted the organisation about the problem but have been unable to resolve it the ICO may be able to help. If necessary, the ICO will investigate the problem further. If they think the law has been broken the ICO can give the organisation advice and ask them to solve the problem. In more serious cases, the ICO can order them to do so.
Unfortunately, the ICO cannot award compensation to individuals or impose any penalties on to an offending organisation for breaking the law. The ICO’s main aim is to get the organisation to change the way it works so that it complies with the regulations in future.
If you feel you have reason to complain you can view more information on when and how to complain about the electronic marketing messages at the ICO website at:
Alternatively the ICO can be contacted at:
The Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
You can reduce silent calls made by automatic dialling equipment by registering your number with the SilentCall-Gard Service on 0800 954 9046. For more advice about the rules on silent calls please contact Ofcom on 0300 123 3333 or you can visit their website website at:
67-68 Hatton Garden
London
EC1N 8JY
T: 0800 773 4894
E: enquiries@tapa.co.uk
W: www.tapa.co.uk
