The Information Commissioner (ICO) has fined Cold Call Eliminations Ltd £75,000 for making unsolicited marketing calls in an attempt to sell cold call blocking devices in breach of direct marketing rules.

Background

Cold Call Eliminations Ltd had been calling individuals in an attempt to sell cold calling blocking services and devices, ironically using a cold calling system which the company's blocking services and devices would have prevented. The ICO and Telephone Preference Service (TPS) received 382 complaints from people registered on the TPS relating to cold calls received from Cold Call Eliminations Ltd. Some elderly customers complained about aggressive callers pressing them to take subscriptions to a service similar to the TPS and one sales person even allegedly implied that they were themselves from the TPS. Cold Call Eliminations Ltd were monitored by the ICO to give the company time to improve but they ignored the warnings and have subsequently been fined.

The Legislation

The Privacy and Electronic Regulations 2003 ("the Regulations") lay down the rules on electronic direct marketing. Any organisation using direct marketing strategies must also follow the rules outlined in the Data Protection Act when handling personal information.

The Rules Relating to Unsolicited Marketing Calls

There are no restrictions on sending "solicited" marketing material i.e. marketing material that has been requested or agreed to by an individual. The Regulations prohibit unsolicited electronic marketing material. Organisations may make live unsolicited marketing calls to individuals but those calls cannot be made to any number registered with the TPS unless consent has been given by the individual to allow those calls. Further issues may arise where organisations have received customer details from third parties. In order to the Regulations, and ICO guidance, clear consent should be obtained from the individuals concerned, as seen in a recent decision of the First Tier Tribunal (Optical Express and the Information Commissioner, EA2014/0014).

Conclusion

By failing to obtain consent from the individuals that they called whose numbers were registered with the TPS, Cold Call Eliminations Ltd were in breach of the Regulations. The nature of the business conducted by Cold Call Eliminations Ltd meant that they understood the law relating to direct marketing but continued to break it by calling people registered on the TPS and, as a result, have been fined by the ICO. The Regulations, ICO guidance and recent ICO enforcement action, all highlight the importance of receiving specific consent before making unsolicited marketing phone calls.

MacRoberts has expertise in and advises on a wide range of data protection law, particularly the obligations on organisations in relation to personal data and security measures. For more information, please contact a member of our Intellectual Property, Technology and Commercial Team.

© MacRoberts 2015

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