Conclusions and recommendations
1. We agree with Which?
that a complete ban on cold-calling should not be sought, not
least because there are many legitimate reasons why such calls
might be made, be it by the emergency services, medical practitioners,
pharmacists, elected politicians, candidates for elections, charities
and companies with whom the recipient has a genuine relationship.
The target must be unsolicited calls and texts for marketing
purposes and the smaller number of calls made with fraudulent
intent. (Paragraph 7)
2. The ease with which
consent to receive marketing calls can inadvertently be granted,
for example as part of standard terms and conditions, amounts,
in our view, to unfair processing of personal data. This makes
it in direct breach of section 4 of the Data Protection Act. (Paragraph
22)
3. The unfair trading
of personal data is in clear breach of section 4 of the Data Protection
Act 1998 and we expect the Information Commissioner's Office to
be resolute in tackling this issue. Even if this means having
sometimes to deploy sanctions short of fines, such as naming and
shaming and the issue of enforcement notices, this ought to be
considered given the wide contempt in which the data protection
principles appear to be held. (Paragraph 24)
4. We believe there
is scope for unscrupulous businesses to circumvent, if not completely
ignore, the Data Protection Act 1998 and we therefore recommend
that the Government should legislate to proscribe the unfair processing
not only of personal data but also of contact data, particularly
telephone numbers. (Paragraph 25)
5. We encourage the
Information Commissioner's Office to act against companies that
make a habit of calling people registered with the Telephone Preference
Service with whom they have no clear and direct business relationship.
The Government should consider whether supporting amendments should
be made to the consent requirements in the Privacy and Electronic
Communications (EC Directive) Regulations 2003. (Paragraph 26)
6. We are not convinced
that formally codifying in legislation a fixed expiry date for
third party consent to receive marketing calls would add significant
additional protection to consumers. (Paragraph 27)
7. We welcome recent
guidance published by the Information Commissioner's Office which
makes clear that organisations should be in a position to demonstrate
they have an individual's consent to receive their marketing messages.
We believe this is necessary to comply both with the letter and
the spirit of the Data Protection Act 1998 and the Privacy and
Electronic Communications (EC Directive) Regulations 2003. (Paragraph
29)
8. The planned review
by Ofcom and the ICO of the effectiveness of the TPS is long overdue
and should provide much-needed data to inform further regulatory
action. (Paragraph 30)
9. More organisations
could be encouraged to become TPS licensees by reducing the annual
fee for smaller companies - including sole traders. This might
achieve a closer regulatory relationship with the Direct Marketing
Association to the benefit of companies and consumers alike. (Paragraph
32)
10. We believe that
it is in the commercial interests of both mobile phone network
operators and handset manufacturers to filter out unwanted text
messages and we urge them to make greater efforts in this area.
(Paragraph 35)
11. We find BT's justification
for charging for caller display totally unconvincing and ask them
to reconsider. Other communications companies who charge their
customers for a similar facility should likewise consider providing
this free of charge. (Paragraph 38)
12. Companies need
to promote a wide range of technical options available to their
customers to screen, curtail, block and report nuisance calls.
The more of these technical fixes that are included in standard
packages, at no extra cost, the better. (Paragraph 41)
13. We recommend that
the Government legislates to proscribe the withholding of caller
identification in telephone calls made either for marketing or
for establishing marketing leads. We discourage consumers from
making any purchase arising from telephone marketing activity
where a valid contact telephone number has not been provided.
(Paragraph 44)
14. We recommend
that Ofcom deploys its expertise and good offices to help landline
operators overcome the barriers that prevent them from providing
a short code nuisance call reporting service analogous to the
one their mobile competitors already provide. (Paragraph 46)
15. We believe it
would be more convenient for telephone users were they presented
with a single straightforward online complaints form for all nuisance
calls and texts. This can then be directed to the relevant regulator
and an appropriate reply provided to the complainant. Such a
one-stop shop for complaints stops short of creating a single
regulator. However, it would provide some elements of a "customer-facing"
approach that such a regulator would bring and which the existing
reporting mechanisms have failed so far to provide. (Paragraph
48)
16. There should be
a single nuisance calls helpline to which individuals should be
directed. We suggest that this helpline should be prominently
displayed on all telephone bills. The helpline could be staffed
by individuals from either Ofcom, the ICO or both. (Paragraph
51)
17. Service providers
should put systems in place to facilitate the tracing of nuisance
calls, something that is routine for emergency 999 calls. Making
such a facility widely available may, we acknowledge, be subject
to some resource constraints. While it will clearly not be possible
to go after every transgressor that is no justification for a
continued failure to take enforcement action on a scale that will
provide an effective deterrent. (Paragraph 56)
18. The threshold
for the Information Commissioner to take enforcement action under
the Privacy and Electronic Communications (EC Directive) Regulations
2003 should be changed to cover telephone calls or text messages
likely to cause nuisance, annoyance, inconvenience or anxiety.
(Paragraph 61)
19. We recommend that
individuals and organisations who persistently make nuisance calls
in breach of the Privacy and Electronic Communications Regulations
should have monetary penalties repeatedly imposed. We do not
consider it disproportionate that such fines should threaten the
continued operations of people who ought not to be in business
in the first place. (Paragraph 66)
20. We welcome the
Government's decision to amend section 393 of the Communications
Act 2003 to permit Ofcom to share information with the ICO. We
also appreciate the Government's undertaking to implement this
measure "as soon as possible", given the careful consideration
needed before any extension of data processing powers. (Paragraph
74)
21. Ofcom should consider
extending the application of its persistent misuse powers to cover
all direct marketing calls. There is no reason why persistent
abusers of the telephone networks should not be hit twice. (Paragraph
76)
22. While we recognise
that the existence of multiple regulators, each with a specific
and limited remit in relation to nuisance calls, may be confusing
to consumers, we see no obvious benefit in reorganising the current
regulatory landscape. However, the complaints process must be
more consumer-friendly and there should be clearer lines of accountability.
Each of the main regulators should name an identified individual
whom consumers can hold responsible for dealing with the problems
of nuisance calls. (Paragraph 82)
23. We see no pressing
case for a single nuisance calls regulator. We do see the case
for a single point of contact for all nuisance calls and for the
existing regulators to be more visible and accountable for both
their actions and inaction. (Paragraph 83)
24. The Direct Marketing
Commission would have more clout were it to be given greater authority
to share relevant information with both the Direct Marketing Association
and the Telephone Preference Service. (Paragraph 88)
25. We believe that
consumers would be unwise to respond positively to direct marketing
calls that do not adhere to a code of practice equivalent to that
which applies to members of the Direct Marketing Association.
(Paragraph 90)
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