A breakdown of the ICO’s recent guidance on how to comply with the UK’s data protection regime when making live marketing calls.

The ambiguous lyrics from this popular song have left me confused. Am I allowed to call this person about my new products, or would this breach the rules set out in the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR)? Thankfully the UK’s Data Protection Authority, the ICO, has shed some light on what you must do to comply with PECR if you want to make live marketing calls.

What is a live call?

A live call is a telephone call where a live person is speaking to the person they are calling. The term ‘live’ is used to distinguish this method of call from automated calls. There are stricter rules if you intend to make an automated marketing call which can be found here.

What is direct marketing?

The Data Protection Act 2018 says that direct marketing means:

“the communication (by whatever means) of advertising or marketing material which is directed to particular individuals”

This broad definition includes marketing by live calls and covers all types of advertising, marketing or promotional material (such as commercial marketing and fundraising).

The definition doesn’t cover live calls made for administrative or customer service purposes (often referred to as “service messages"). However, if you include promotional content within your service call, then the call will likely count as direct marketing.

What type of live marketing calls are covered?

PECR rules apply even if you do not know the name of the person you are calling. The marketing rules in PECR protect “subscribers”. The subscriber is the customer who has a contract with the service provider (i.e., the person named on the telephone bill). PECR rules apply to both corporate subscribers and individual subscribers.

Am I responsible for complying with the rules on live marketing calls?

PECR rules apply to anyone that wishes to make unsolicited live calls for the purposes of direct marketing. It is the ‘caller’ or the ‘instigator’ of the call who has responsibility for complying with the rules.

If you’re using a supplier to make calls on your behalf, complete your due diligence and get a contract in place.

Solicited vs unsolicited

Live marketing calls are solicited if someone specifically asks you to call them with marketing information. In this case, most of the PECR rules don’t apply (so, for example, you don’t need to check the number against the Telephone Preference Service, or TPS, list). Unsolicited means a live call that someone hasn’t specifically requested.

What are the rules on making most types of live marketing calls?

You may decide that you want to ask for consent to your live marketing calls. However, in general, you don’t need consent under PECR. You can make unsolicited marketing calls to people and businesses without consent if:

• they have not objected to your live marketing calls (you should keep a ‘do not call’ suppression list of those who ask you not to call and check against this list); and
• the number is not listed on the TPS or the Corporate Telephone Preference Service (CTPS).

Note: there are stricter rules for claims management services and pension schemes. In addition, your live marketing calls may also be affected by the rules and standards of other regulators (such as the Financial Conduct Authority). Further information can be found in the full guidance here.

In addition, when you make a live marketing call (solicited or unsolicited), you must:

• display your number (or a valid alternative contact number) to the person receiving the call;
• say who is calling (e.g. the name of your organisation) and provide contact details or a Freephone number for your organisation if asked; and
• comply with the UK General Data Protection Regulation (UK GDPR) if your live marketing activity uses someone’s personal data.

The same rules apply if you are using bought-in lists or publicly available phone numbers to make live marketing calls.

Checklist

• Plan ahead to understand the rules and regulations which apply to your live marketing campaign;
• Decide upon your lawful basis (and document/evidence this where required);
• Check the number against your suppression lists and the TPS or CTPS;
• Display your number and say who is calling;
• Comply with the UK GDPR when you process personal data;
• Respect when someone decides to opt out or withdraws their consent.

We have experts in the team who can assist you with all your different types of marketing campaigns. So call me, maybe.