How do the Regulations apply to automated calling systems?
The Regulations restate the requirement of the 1999 Regulations for marketing by automated calling or communication systems.
However, Regulation 19(4) clarifies the definition of ‘automated calling system’. It refers to a system that is ‘capable of automatically initiating a sequence of calls to more than one destination in accordance with instructions stored in that system’ and that transmits ‘sounds which are not live speech for reception by persons at some or all of the destinations so called’. The UK Information Tribunal ruled on a case where automated calls had been used to promote the Scottish National Party in the lead-up to the 2005 General Election.
It is important to note that automated calling systems do not cover marketing by text, picture or video message, by fax or by email. They also do not cover the technology some call centres use to dial target numbers automatically to initiate live telephone conversations, so-called ‘power dialling’. Text, picture and video messages, faxes, live voice telephone calls and emails are covered elsewhere in the Regulations.
This is what the law requires:
- Marketing material may be transmitted by such a system only with the prior consent of a subscriber. This means the subscriber must have told the caller that they consent, for the time being, to the caller making or instigating such communications to be sent on that line (Regulations 19(1) and (2) apply).
- A subscriber must not permit their line to be used to contravene Regulations 19 (Regulation 19(3) applies).
- All marketing messages sent by this method of communication must include the identity of the caller and a contact address or Freephone number (Regulation 24(1)(a) applies).
The mischief that Regulation 19 aims to tackle is where a subscriber receives a marketing call that is a recorded message, with no opportunity to speak to a ‘live’ person. Such calls are particularly intrusive and can be unsettling for the recipient. So we take a firm line on this point. We believe that even if the recipient is given an opportunity to talk to a ‘live’ person at some point in the message, for example, ‘to speak to a live operator, press 1’, such a call would still be covered by the prior consent rule because recipients without touch-tone phones would be excluded from such an opportunity.
A subscriber is not registered with TPS and has not contacted us to tell us that they object to us marketing them by telephone. Can we call them with a pre-recorded marketing message?
No. You would need their prior consent to do so.
The regulation on automated calling systems does not spell out our obligation to respect an opt-out request from a subscriber. Does this mean we don’t have to comply with such requests?
In our view, if you can send marketing by automated calling systems to a subscriber only if that subscriber has given their consent to such calls, this implies they can withdraw consent at a later stage. We would quote the inclusion of the phrase ‘for the time being’ (Regulation 19(2)) to support our view. We are likely to take enforcement action against companies in the UK jurisdiction who persistently fail to comply with opt-out requests from subscribers.