The Law and Cold Calling
Cold calling is used by businesses to call members of the public in an attempt to get them to buy a product or service. It is a common marketing technique used by many businesses.
In recent years there has been a review of legislation into persistent cold calling in an attempt to reduce ‘nuisance’ calls that consumers receive on a regular basis. There may be some instances where cold calling could be lawful. In 1999 the Telecommunications (Data Protection and Privacy) Regulations were introduced and this legislation placed an emphasis on how unsolicited correspondence such as emails, telephone calls and faxes could be used.
These new regulations also created the Telephone Preference Service (TPS) and Fax Preference Service (FPS)
Telephone Preference Service – When you are added to this list, you have opted out of all unsolicited telephone calls used for marketing purposes. Individuals and sole traders can register with the TPS and businesses cannot call anyone on this list. If they do they could face significant fines.
Fax Preference Service – Another opt-out register whereby individuals and businesses registered do not want to receive unsolicited marketing faxes
Corporate Telephone Preference Service – A third opt-out register specifically for businesses. Any business added to this list expressly wishes not to be contacted by businesses marketing products or services.
OFCOM is the regulatory body who is responsible for keeping and maintaining these central registers.
In the years since the Telephone Preference Service was introduced, various updates have been made through other pieces of legislation, namely the Privacy and Electronic Communications Regulations 2003 and the amended legislation introduced in 2004.
Cold Calling: Legal or Illegal?
If you are a business owner, it is important to be able to recognise when you can and cannot use cold calling. This section explains more.
Automated Systems – Some businesses will use automated systems that use computers to select numbers and call people listed on a sales database. However, under the Privacy and Electronic Communications Regulations of 2003, these systems are no longer permitted for direct marketing.
The only exception to this rule is if the recipient of the call has opted in to a subscription list to receive marketing calls. You must receive the callers permission to receive marketing communications by phone if you wish to contact them in this way.
Direct Marketing through Fax
The regulations introduced in 2003 (The Privacy and Electronic Communications) also prevents the distribution of unsolicited marketing messages by fax. Again, the only exception to this rule is if the recipient has specifically subscribed to receiving such communications.
When an individual has opted into receiving marketing communications it should be made clear that they are free to opt out of receiving these marketing messages at any time.
A business cannot be held liable if they send a message to a customer who has opted out of receiving communications if the customer has opted out within the past 28 days.
When faxes are sent, it must clearly display the name of the sender.
Direct Marketing and Unsolicited Calls
A business cannot make unsolicited calls for direct marketing purposes to any individual or business who is registered with either the Telephone Preference Service or the Corporate Telephone Preference Service register.
In situations where cold calling is allowed, the caller must provide their name and if the recipient asks, provide their address and telephone number.
Direct Marketing and Unsolicited Emails
Under the Privacy and Electronic Communications Regulations 2003, unsolicited emails are prohibited for the purpose of direct marketing. There are several exceptions to this rule which includes:
The recipient of the email has given their express permission that they are willing to receive emails
During a sale when the sender collects the email address as part of the buying process and the marketing is based around similar products or services, providing that the recipient didn’t refuse to receive such communications at the time
When emails can be used for direct marketing, the Privacy and Electronic Communications Regulations 2003 specifically prevents the sender from hiding their contact details or identity. The sender must also provide contact details in a clear and unambiguous way that the recipient can use to opt out of receiving direct marketing communications.
Even registering with one of the preference services outlined above, doesn’t necessarily stop all unwanted marketing calls but it can significantly reduce the volume of calls that you receive. Businesses can still make market research calls but this cannot be in any way associated with selling or marketing.
Many businesses automatically collect your details when you make a purchase and they will have the marketing communications box already ticked. However if you start receiving marketing calls or emails that you no longer want it is your right to opt out of this communication.
Once you have opted into one of the preference registers, it can take 28 days for it to come into effect. So even if you join one of these registers, you may still receive calls and/or emails for another 28 days. If the calls continue after the 28 days, you can submit a formal complaint which you can do over the phone, online or in writing.
The preference service will then contact the business sending the unwanted communications, ask why the marketing information is still being sent and request that the complainant is removed from their marketing list.
As a consumer it is important that you understand your rights. Unless you have specifically opted in, cold calling is unwanted and problematic and it is your right as a consumer not to be contacted by businesses trying to sell you products and services.
About the author:
This article was written by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.