Culture, Media and Sport CommitteeWritten evidence submitted by the Department for Culture, Media and Sport

Introduction

The Government welcomes this important inquiry into nuisance telephone calls and text messages.

Tackling nuisance calls is a priority. There is, however, no simple quick fix. The Government is pursuing a range of options for reform—both legislative and non-legislative—that will make an impact on the volume of nuisance calls.

A significant amount of work has already been undertaken, and is starting to generate results. For example, there is improved signposting with clearer advice for consumers about nuisance calls; a simpler complaints process; and greater use by regulators of their powers to issue substantial monetary penalties to companies breaking the law. In 2010 the Government increased the financial penalties Ofcom could levy from £50,000 to £2 million. In 2011, the Government gave the Information Commissioner’s Office (“ICO”) the power to levy fines of up to £500,000 for the first time.

The Government set out next steps in tackling nuisance calls in its Connectivity, Content and Consumers (CCC) strategy paper, which was published on 30 July 2013.1, the two relevant regulators—Ofcom and the ICO—outlined their Joint Action Plan: http://www.ico.org.uk/news/latest_news/2013/ICO-and-Ofcom-draw-up-joint-action-plan-to-tackle-nuisance-calls-31072013

http://stakeholders.ofcom.org.uk/consultations/silent-calls/joint-action-plan. The Plan identifies steps they are taking to improve guidance, on-going targeted enforcement and improving call and message tracing processes to track down those responsible for making nuisance calls. This will include completing new in depth market research by spring 2014 to determine how effectively the Telephone Preference Service (“TPS”) is working.

Current Regulatory Landscape and its Enforcement

The term “nuisance calls” is used to describe a range of different types of calls. For most consumers it primarily concerns three kinds of call: unsolicited live direct marketing calls, automated recorded message calls and silent and abandoned2 calls.

Depending on the type of call, a different regulatory regime applies:

The Information Commissioner’s Office (ICO) has an enforcement role, under the Privacy and Electronic Communications Regulations 2003 (PECR), in relation to unsolicited live calls and automated recorded messages, where these are made for direct marketing purposes. PECR also gives the ICO enforcement responsibilities in relation to unsolicited electronic messages (including text messages and e-mails) made for direct marketing purposes.

Ofcom has an enforcement role in relation to silent and abandoned calls under provisions in the Communications Act 2003 concerning persistent misuse of a network or service. Ofcom can issue a maximum penalty of up to £2 million for a breach of these provisions. The Ministry of Justice (MoJ) oversees the ICO’s enforcement role in relation to the PECR and its data protection activity, because it is responsible for all the activities of the ICO. The Department of Culture Media and Sport (DCMS) has responsibility for silent and abandoned calls, because of its responsibility for Ofcom. A regulatory map is attached at Annex A.

Under the PECR, live direct marketing calls cannot be made to a number that is registered with the Telephone Preference Service (“TPS”) or if the called line is that of a person who has previously notified the caller that such calls must not be made on that line. The TPS acts as a “do not call register” and is a free service. More than 19.2 million numbers are currently registered with the TPS.

All recorded message calls and text messages require the prior consent of the recipient.

Action Taken to Tackle Nuisance Calls and Texts

Since January 2012 the ICO has issued monetary penalties totalling £800,000 to six companies, the highest of which was £300,000. Ofcom has issued monetary penalties totalling £1.56 million to three companies, including £750,000 on two occasions and £60,000. The ICO is currently investigating 15 companies and Ofcom is investigating 13 companies, with a view to taking enforcement action in the near future.

Full details about companies penalised is provided at Annex B.

In addition, the most complained about companies are now being “named and shamed” on the ICO’s website at: www.ico.org.uk/enforcement/action/calls

Legislative Options Being Considered to Further Support Reform

The Government is considering a number of legislative options to help further tackle the problem of nuisance calls and texts.

Enabling Ofcom to share Information with the Information Commissioner’s Office (ICO):

Ofcom in the course of its regulatory activity may obtain information about companies, which might also be useful for the ICO in relation to breaches of the PECR. However Ofcom is prevented from sharing this information with the ICO without first having to undertake a complex legal process.

The Government is considering amending the Communications Act to permit such information to be shared. We propose to do this by adding the ICO (and the Insolvency Service) to the list of “relevant person” under s393 (3) of the Communications Act 2003, which sets out with whom Ofcom can share information.

Lowering the legal threshold to allow the ICO to issue more penalties:

Currently, the ICO can only issue monetary penalties against companies where it considers the contraventions to be serious and of a kind likely to cause “substantial damage or substantial distress”. This means that for less serious cases the ICO’s scope for action is limited. Following discussions with the ICO we are considering whether to lower the legal threshold for issuing a monetary penalty to, for example, calls likely to cause “nuisance, annoyance, inconvenience or anxiety”. The issue impacts on both the PECR and the Data Protection Act (DPA) and needs further consideration.

Notification issues:

Under the PECR an organisation can make a live direct marketing call to a telephone number registered with the TPS if the person to whom that number belongs has given that organisation notification that they do not, for the time being, object to such calls being made. The person is free to withdraw this notification at any time. Consumers therefore need to understand that, even if their number is registered with the TPS, calls can still be made to them if they have given their consent.

However, issues of notification and consent are complex and span PECR and DPA. Consumers may not be aware that they have technically given consent, or may have forgotten that they have given consent. The Government is considering whether there is scope to make consent, in relation to overriding the TPS, time limited. In addition, the Government is considering strengthening the law on use of notification of consent by third parties eg companies within a group or affiliated companies and the need to name third parties. However, such measures are likely to increase burdens on business and therefore are being carefully considered alongside work to better understand the data selling industry.

European Commission Proposals

A revised EU Data Protection Regulation is currently being negotiated. The European Commission published two legislative proposals for data protection on 25 January 2012. The proposals contain a draft Regulation (setting out a general EU framework for data protection) and a draft Directive (covering processing in the area of police and judicial co-operation). Proposals include considering whether consent should be required to be explicitly obtained by the caller on each occasion a call is made, which would make the current “tick box” arrangements inapplicable and could lead to less nuisance calls for consumers.

Non-Legislative Options Being Considered for Reform

Accreditation for calling companies:

Presently, there is no legal requirement for a call centre engaged in direct marketing to be licensed or accredited. Accreditation could be a useful measure to help ensure higher standards in the industry, as well as helping consumers have access to expert advice and guidance about compliance with rules and regulations.

The Direct Marketing Association (DMA) works to improve industry practice. It is understood that the DMA through the TPS is considering a voluntary accreditation scheme, which will be open to both DMA members and non-members. Any effective scheme would need to include robust procedures to monitor compliance with PECR, Ofcom guidance and DMA’s best practice when making calls.

Improved Information for Consumers

Understandably, there is some confusion among consumers about whom to contact when making a complaint about receiving unsolicited calls and texts, particularly as the regulatory landscape is quite complex. The two regulators have improved consumer guidance by establishing guidance on both their sites so that consumers can easily find where to make the appropriate complaint: http://consumers.ofcom.org.uk/2012/10/tackling-nuisance-calls-and-messages.

The ICO and Ofcom have agreed to further improve their guidance by the autumn, in particular working with Which? to establish a single website for complaints, which was successfully launched at the end of July. This in effect provides a “one stop shop”, which helps consumers to register complaints about the different types of nuisance calls and texts that they receive in quick and easy way: http://www.which.co.uk/campaigns/nuisance-calls-and- texts/#?intcmp=GNH.Campaigns.Stop-Nuisance-Calls-And-Texts

Also, Ofcom’s website pages provide information at: http://consumers.ofcom.org.uk/tell-us/telecoms/privacyand their Consumer Guide provides detailed information and signposts the correct place to make a complaint about nuisance calls and texts along with ICO and TPS at:

http://consumers.ofcom.org.uk/2012/10/tackling-nuisance-calls-and-messages.

http://www.ico.org.uk/for_the_public/topic_specific_guides/marketing/calls

http://www.tpsonline.org.uk/tps/index.html

Joint ICO & Ofcom Action plan:

The nature of the regulatory landscape means it is essential to have greater joined up working and sharing of ideas. Government is very encouraged that the ICO and Ofcom have now issued a joint action plan to help drive forward improved enforcement in light of their specialist knowledge in this area.

Further details about ICO and Ofcom proposals are set out at:

http://www.ico.org.uk/news/latest_news/2013/ICO-and-Ofcom-draw-up-joint-action-plan-to-tackle-nuisance-calls-31072013

http://stakeholders.ofcom.org.uk/consultations/silent-calls/joint-action-plan/

The Government will monitor progress against this action plan with interest.

Technology Deployed by Communications Service Providers to Curtail Calls and Texts

Whilst not an area led by Government, it is relevant to note developments in the market that help contribute to tackling the issue of nuisance calls and texts.

Global System for Mobile Communications Association (GSMA) spam text reporting service

When an SMS spam message is received by a subscriber it can be easily forwarded and reported by using short code “7726”. The spam report is captured by the GSMA spam reporting service, which is run by Cloudmark and is added to the database. The service gives operators the ability to understand the amount of spam entering and leaving their networks, as well as within their networks. Mobile operators can access detailed reports on spam content, senders and reporters and can use this information to take action against abusive traffic, without impacting legitimate users and content.

Work to trace calls:

Although, it is a requirement under DMA rules for callers to identify their number, many companies deliberately flout this rule. Government is working with regulators and communication providers to explore technical options to identify companies that conceal the telephone number which they are calling from. There are significant technical challenges due to developments in the industry over the past 20 years. We will be keen to review the work being done by the Network Interoperability Consultative Committee (NICC), BT and others to see if supporting government action is needed.

Services and products available in the market:

A range of call blocking services is available from telecom service providers usually for a small charge and these can help to reduce the need to answer nuisance calls. This includes “Calling Line Identification Display”, “Automatic Call Rejection” and “Choose to Refuse”. “Choose to Refuse” service allows consumers to block numbers by specifying numbers that they do not want to receive calls from, “Caller Display” enables a consumer to choose to ignore calls that withhold their number and “Anonymous Call Rejection” blocks incoming calls that withhold their number. Also, products such as telephone handsets and plug in devices are commercially available that can similarly help to block nuisance calls, which can also be configured to block particular types of calls that may be causing a problem, such as withheld numbers, silent calls and recorded message calls.

Additionally, communication providers are considering blocking nuisance calls at network level.

Conclusion

The Government is acutely aware of difficulties that consumers are currently facing in relation to nuisance calls and texts. In the last few years, we have introduced and increased the financial penalties for breaching the relevant regulations; encouraged greater co-operation between the ICO and Ofcom; and improved consumer guidance. We will now consider further measures, including lowering the threshold for enforcement action; better sharing of data between regulators; a clearer regime for consumer consent; and voluntary measures such as call centre accreditation, in order to ensure that we can have a greater impact on the issue.

August 2013

Annex A

REGULATORY MAP

Annex B

MONETARY PENALTIES ISSUED BY ICO SINCE JANUARY 2012

Date	Company	Issue	Penalty
8 July 2013	Tameside Energy Services Ltd (Manchester)	Energy efficiency improvements company. Failed to carry out adequate checks on TPS registration	£45,000
18 June 2013	Nationwide Energy Services We Claim You Gain	Both companies part of Save Britain Ltd based in Swansea. Failed to make adequate checks whether recipients were TPS registered.	£125,000 (appealed) £100,000 (appealed)
18 Mar 2012	DM Bedroom Designs Ltd Glasgow	Manufactures, fitment and sellers of kitchens, bathrooms and bedrooms. Made unsolicited calls to TPS registered consumers,	£90,000
28 Nov 2012	Tetris Telecom Manchester	Two companies owned by two individuals. Sent millions unsolicited SMS text messages	£300, 000 (appealed) £140, 000

MONETARY PENALTIES ISSUED BY OFCOM SINCE JANUARY 2012:

Date	Company	Issue	Penalty
18 April 2013	TalkTalk	Making abandoned calls	750,000
6 Dec 2012	Npower	Making silent and abandoned calls	£60,000
19 April 2012	Homeserve	Making silent and abandoned calls	£750,000

(Source: information obtained from ICO and Ofcom websites)