Communications (Unsolicited Telephone Calls and Texts) Bill (HC Bill 21)

A

BILL

TO

Reduce the incidence of unsolicited telephone calls and texts received by
consumers; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

1 Interpretation

In this Act “the Regulations” means the Privacy and Electronic
Communications (EC Directive) Regulations 2003 (S.I. 2003/2426S.I. 2003/2426).

2 Amendment of the Regulations

(1) 5The Regulations are amended as set out in subsections (2) to (5).

(2)
After regulation 20(5) insert—

  • (5A) A subscriber will not have given notification to a caller for the
    purpose of paragraph (5) unless that notification is given directly to the
    caller by the subscriber and not obtained by the caller via another person.

(3) 10After regulation 21(4) insert—

  • (4A) A subscriber will not have given notification to a caller for the
    purpose of paragraph (4) unless that notification is given directly to the
    caller by the subscriber and not obtained by the caller via another person.

(4) After regulation 24 insert—

24A 15Collection of personal data for direct marketing purposes

(1) Except in the circumstances referred to in paragraph (2) a person shall
not collect, nor instigate the collection of, personal data from a data
subject if at the time of collection the person knew or ought reasonably
to have known that the personal data would be used—

(a) 20by any person for the purpose of direct marketing via an
automated calling system;

Communications (Unsolicited Telephone Calls and Texts) BillPage 2

(b) by any person for the purpose of direct marketing via facsimile
machine;

(c) by another person for the purpose of direct marketing by
electronic mail; or

(d) 5for one or more of the purposes in paragraphs (1)(a), (1)(b) or
(1)(c), even if at the time of collection it was not known precisely
which of those purposes the personal data would be used for.

(2) The circumstances referred to in paragraph (1) are where, at the time
the person collects the personal data, he obtains the necessary consent
10from the data subject to use the personal data.

(3) The necessary consent referred to in paragraph (2) is—

(a) the consent required by regulation 19(2), where paragraph
(1)(a) applies;

(b) the consent required by regulation 20(2), where paragraph
15(1)(b) applies;

(c) the consent required by regulation 22(2), where paragraph (1)(c)
applies; and

(d) the consent required by each of regulations 19(2), 20(2) and
22(2) where paragraph (1)(d) applies.

24B 20Consent and notification

(1) This regulation applies to any consent or notification that is required
for the purpose of regulation 19(2), 20(2), 20(5), 21(4) or 22(2).

(2) Consent or notification persists for the time being only if—

(a) the marketer has not been informed, expressly or implicitly,
25that the consent or notification has been withdrawn;

(b) the marketer is not aware of any other circumstances suggesting
that the consent or notification does not persist for the time
being; and

(c) where the marketer obtained the consent or notification via a
30third party, the person who gave the consent or notification did
so less than 1 year ago.

(3) In this regulation “marketer” means a person who carries out or
instigates an activity for direct marketing purposes in reliance on any
consent or notification.

24C 35Inappropriate direct marketing

(1) A person shall neither transmit, nor instigate the transmission of—

(a) communications comprising recorded matter by means of an
automated calling or communications system;

(b) unsolicited communications by means of a facsimile machine;
40or

(c) unsolicited communications by means of electronic mail

for the purpose of inappropriate direct marketing.

(2) A person shall neither use, nor instigate the use of, a public electronic
communications service to make or attempt to make unsolicited calls
45for the purpose of inappropriate direct marketing.

(5) In Schedule 1—

Communications (Unsolicited Telephone Calls and Texts) BillPage 3

(a) in paragraph 1(b) for “the words “or distress” shall be omitted”
substitute “for the words “damage or distress” there shall be
substituted the words “annoyance, inconvenience or anxiety””;

(b) at the end of paragraph 4(a) insert—

  • 5(2A) If an information notice requires a person to furnish the
    Commissioner with information about any consent or notification that the
    person was required to obtain in order to comply with a relevant
    requirement, and the person does not furnish sufficient information to
    show that he obtained the requisite consent or notification, the
    10Commissioner may rely on this fact in deciding whether he is satisfied
    that the person has contravened a relevant requirement for the purpose of
    section 40(1).

  • (2B) For the purpose of subsection (2A), unless the Commissioner decides
    otherwise, a person will not furnish sufficient information to show that he
    15obtained the requisite consent or notification by demonstrating that he
    obtained the requisite consent or notification via a third party, unless he
    also—

    (a)

    informs the Commissioner of the identity of the third party; and

    (b)

    furnishes sufficient information to show that the requisite
    20consent or notification was in fact obtained by the third party or by
    another identified person.;

(c) after paragraph 8A(a)(ii) insert—

(iii) for “substantial damage or substantial distress” there shall be
substituted “annoyance, inconvenience or anxiety”;

(d) 25for paragraph 8A(b) substitute—

(b) in subsection (3)—

(i) for “data controller” there shall be substituted
“person”;

(ii) for “substantial damage or substantial distress” there
30shall be substituted “annoyance, inconvenience or
anxiety”.

3 Power to make further provision by order

(1) The Secretary of State may by order specify criteria that must be met before a
person may rely on any consent or notification for the purpose of complying
35with regulation 19, 20, 21 or 22 of the Regulations.

(2) Without prejudice to the generality of subsection (1), an order under subsection
(1) may—

(a) include a requirement that specified information be given to a person
about any aspect of that person‘s consent or notification;

(b) 40include a requirement that the information referred to in subsection
(2)(a) be given in plain language; and

(c) specify measures that a person must take, where that person has
obtained consent or notification via a third party, to ensure that the
consent or notification has been collected in such a way that it may be
45relied upon for the purpose of complying with the Regulations.

Communications (Unsolicited Telephone Calls and Texts) BillPage 4

4 Guidance about inappropriate direct marketing

(1) The Commissioner may prepare and issue guidance as to what does and does
not constitute inappropriate direct marketing for the purposes of regulation
24C of the Regulations.

(2) 5The Commissioner may alter or replace the guidance.

(3) If the guidance is altered or replaced, the Commissioner must issue the altered
or replacement guidance.

(4) The Commissioner must consult the Secretary of State before issuing any
guidance under this section.

(5) 10The Commissioner must lay any guidance issued under this section before
each House of Parliament.

(6) The Commissioner must arrange for the publication of any guidance issued
under this section in such form and manner as he considers appropriate.

(7) In subsections (4) to (6), “guidance” includes altered or replacement guidance.

5 15Amendment of the Communications Act 2003

(1) The Communications Act 2003 is amended as set out in subsection (2).

(2) After section 393(3)(i) insert—

(j) the Information Commissioner as appointed under section 6 of
the Data Protection Act 1998.

6 20Short title, commencement and extent

(1) This Act may be cited as the Communications (Reducing Unsolicited
Telephone Calls and Texts) Act 2013.

(2) The provisions of this Act shall come into force on such day as the Secretary of
State may appoint by order made by statutory instrument.

(3) 25An order under subsection (2) may appoint different days for different
purposes.

(4) This Act has the same extent as the Regulations, except section 5 which has the
same extent as the Communications Act 2003.