I am sometimes called to jobs where a member of the public has been receiving suspicious phone calls, and are concerned whether they have a crank caller. Whilst it is mostly impossible at first contact for a police officer to distinguish between a genuine tele-marketing phone call from a malicious call, people sometimes seek advice from police about how to stop receiving such calls. For the elderly, tele-marketing calls are often a problem as they tend to be at home when such calls are made.
The following advice will reduce or eliminate the circulation of your personal data for the purposes of marketing purposes, and hence the reduction of junk mail, spam emails and tele-marketing. The subject is quite complex, and I will give a comprehensive explanation of the various aspects of law and industry practice. However, the following bullet points act as a quick summary of how best to prevent unwanted mailings and phone calls.
- Only give your personal details to companies from which you buy a product or service
- If you think that an aspect of what is being collected is not required for provision of that service, do not give such information (e.g. is an email address essential for provision of gas? It may be if they bill you online.)
- If you do not want to receive marketing letters, calls or emails from that company, read the small print and tick (or otherwise) the appropriate boxes on the application form. Pay particular attention to any privacy statement or fair processing statement
- If you have an existing customer relationship with a company, you must write to each and every company that could have your personal details, and tell them that you do not want them to process your personal data for marketing purposes, or give your data to third parties for marketing purposes
- Do not complete prize draw or surveys without checking the small print about how they will use your data
- Register with the Mailing Preference Service (MPS), see below
- Register with the Telephone Preference Service (TPS), seel below
- When you move house and write to companies requesting a change to your address, remind them that you do not want your data used for marketing purposes
- When moving house, re-register with MPS and TPS
Be Aware Of...
Doing the above will minimise the situations where you receive direct mail or unwanted phone calls. However, please be aware of the following:
- Take care with tick boxes and be satisfied about the meaning of ‘a tick’. Does a tick mean that you opt out of marketing, or allow it?
- MPS and TPS registration takes approx 28 days to filter through the system
- If you are a customer of a company and you have not opted-out of marketing, they do not have to remove you from tele-marketing even if you are registered with TPS. This is why you must write to each company to advise them not to process your data for marketing purposes.
- If a company has obtained your name and phone number from a marketing list broker and that company wants to phone you for the purposes of marketing, and your are not already a customer of that company, they must use TPS to remove your name from that marketing. However, the relevant legislation applies only to calls made from within the UK and is applicable to voice calls only. Some companies call from outside the UK, thus bending but not breaking the law.
- Where your name is captured legally together with your consent to be used for marketing purposes, your details will continue to circulate on various lists for some time to come.
- Use of MPS is not covered by law, but advertising codes of practice state that companies should remove names on MPS from their mailings where not a person is not a customer of that company
- Some small companies are ignorant of the law in respect of data
- Sometimes mistakes happen, and names are not screened out when they should be. This typically happens when names are spelt incorrectly, or addresses on a company’s system is slightly different to that held on MPS.
Making a complaint
Should you receive a cold call from a company that you have never heard of, you should do two things:
- request that your name is marked on their records as no marketing, or just to remove your details from their database
- ascertain details of that company and make a note of the date and time of call
A More Detailed Explanation
The whole subject is complex and needs to be broken down.
The main piece of legislation around use of any personal data, is the Data Protection Act 1998. Personal data is defined as anything that is held electronically or otherwise, which can reasonably be seen to relate to a living individual. Any company who holds and processes data on a living individual has to be registered with the Information Commission, and adhere to the eight principles of the Data Protection Act 1988 (DPA) and the Privacy and Electronic and Communication Regulations 2003, known as PECR. The principle of the DPA that we are most interested in here, is that any information must be processed in line with your rights. Essentially, when you give any personal details to any organisation, they should explain to you the reason why they need your information, and what they will use it for.
Taking an example: you sign-up for a new energy provider. Clearly they need your name and address so that they can send a bill to you. Maybe they need your telephone number to discuss customer service issues, and/or email address as a quick and efficient means to let you know of changes to the service they provide to you. When you sign on the dotted line, you will be signing-up to the small print that they can store your data and use it in the ways described. If the organization would like to use your data for marketing purposes, they have make that clear to you when you sign (or equivalent ‘click’ online). Aside from ‘marketing purposes’, the company’s small print may allow them to pass your information to ‘carefully selected third parties, to advise of products or services…’ If they don’t mention third parties, they cannot give your data to any other organization, except after first gaining your consent.
Opting Out of Marketing
Good practice within the marketing industry says that you should give the customer the opportunity - at the point of application – to opt out of their data being used for marketing purposes (or given to third parties). But, the company is not obliged to put a tick box on an application form or their website. There is also no stipulation about whether ticking a box means that you are allowing or refusing. Always read the small print carefully. As an alternative to the tick box, the small print may stipulate that you have to write to the company at any time to request that they do not process your personal data for the purposes of marketing, or giving to third parties for marketing purposes. Some companies have tick boxes, and some do not. Some will hide away in the small print about passing your data to third parties, and others will have an additional tick box for your opt out of that aspect, if you choose to do so. Remember, we are talking here about companies for whom you are a customer.
Breaches of Data Protection Principles
Any company that processes your data for marketing purposes or uses your data for a purpose that they have not made clear to you when you signed-up, could be liable to sanctions from the Information Commissioner (ICO), and ultimately a criminal offence could be committed. The chances of any breach turning into a criminal matter is small, as the sanctions that the ICO have available these days are far reaching, and there have been many examples within the last few years of organizations failing to adhere to the eight DPA principles, leading to huge fines. Principally, ‘losing data’ has been a common one, see this BBC new article http://www.bbc.co.uk/news/business-11070217. (The DPA principle at failure here is that the company did not keep personal data secure.) To turn criminal, the organization would have to repeatedly breach DPA principles.
Marketing Preference Lists
We now get into the area of marketing preference lists, and the question of whether adding yourself to such will prevent unwanted contact with organizations trying to sell things to you. The answer to that question is not quite so straightforward! The two main lists I’ll talk about here, are the Mailing Preference Service (MPS), and the Telephone Preference Service (TPS), which are run by the Direct Marking Association through MPS Online, http://www.mpsonline.org.uk and TPS Online http://www.tpsonline.org.uk
If a company has your personal data legally (i.e. you gave it to them in the course of being a customer, or quote to be a customer) and they are using it for a purpose that you allowed them to do so, (i.e. marketing), then they have no obligation to remove your name from their list if you have registered with the MPS or TPS. This is because you have allowed the company to use your data for marketing purposes. However, there are two further reasons why a company may remove your name, being: it’s industry best practice to do so, and you are less likely to buy whatever they are selling in the letter/call if you are on MPS/TPS, so the company will save money by not writing to you.
Where you are not a customer and have never been a customer of the organization contacting you, the situation is different. The provision that the company must have obtained your data legally does not change, but if they want to phone you, they must remove you from the list if you are registered with TPS. This is a legal requirement. If that company would like to write to you, they have to remove you if you are registered on MPS, which is a requirement of British Code of Advertising, Sales Promotion and Direct Marketing, as administered by the Advertising Standards Authority (ASA). Whilst not a legal requirement to remove from a mailing an MPS registered individual, the company could land themselves in hot water with the ASA if they do not.
Where you are not a customer...
Aside from organisations from which you have bought products and services and would consider yourself a customer, there are other times that we, as members of society hand over our personal data to others. Examples of this include completing a survey, or prize draw form, which in many cases are in themselves a means by which to collect personal data from people, for use in marketing. If you give your personal details, and do not opt out of marketing, either at the time or later by writing to the company, that company can legitimately use your personal data to the extent provided for when you signed a form when giving the data, which most likely includes providing your data to third party companies, i.e. they can sell your data to other companies, which is what funds the prize draw! The best advice here is to be wary of giving your details in such situations, make a note of the company to whom you are giving your details, and read the small print!
Privacy and Electronic Communication Regulations
The PECR regulations cover email, text messages and automated telephone calls. If you are not a customer of the company wishing to contact you by email, text or recorded telephone message, that company must have your prior consent to do so, which is referred to as being ‘opted-in’ to electronic communication. The usual means of obtaining consent is by a tick box, ‘tick here if you want us to contact you….’ . Poorly targeted bulk spam emails fall into this category, but unfortunately, many spam emails originate from shores far away, and thus escape the legislation. Don’t forget though, if you are a customer of an organization, they can legitimately contact you electronically until you withdraw your consent by writing to them to ask that they do not use your data for marketing purposes.
To further complicate things, the definition of ‘marketing purposes’ is less than clear and it is sometimes open to interpretation. If a piece of communication looks like marketing, e.g. it’s shiny or glossy, contains a promotional offer, such as ‘20% off’, then it probably is marketing for the purposes of using your data and Data Protection legislation. However, where it becomes a grey area, is where the company wants to make you aware of a service that is linked to the product or service that you already have from that company. If a letter was a ‘plain letter’, without any promotion or glossy feel look, the legal guidance would most likely be that such communication is part of the service to you as a customer to make you aware of the linked product, and as such any marketing permission could be overridden. An example of this could be your bank or credit card company making you aware of an identity protection product. Failure to write to you may leave you more exposed to fraudulent activity on your account and later complaints that they did not tell you about a mitigating product.
Tele-marketing operations sometimes result in what is referred to as silent calls. This is where the consumer picks up the phone, and there is a momentary delay before someone talks to you, and these are the situations that are most troubling to older people. The delay is caused because it is often a computer that dials you rather than an human pressing buttons on a phone. Computers are used because they can dial much quicker, and when there's no reply they just move to the next number. In this way they can get through a list of number hundreds of times quicker than any human. Once the computer gets an answer from a consumer, it needs to pass that call to an operator. If the call centre is well run, they will have an operator available to talk to you, meaning that the delay will be barely noticeable. However, when they get things wrong and the computer connects more calls than there are operators to take those calls, that's when there is a long delay before anyone speaks to you, or sometimes the call is ended by the computer after a few seconds if no operator becomes available.
There are strict guidelines that tele-marketing companies must follow, which minimise the potential for them making silent calls. Ofcom welcome people to contact them to make complaints; use this link.
As you can see, it’s a complicated area, and the Direct Marketing Association strive to maintain standards. Most companies are clued up to the laws and regulations and do not want to phone or write to you if you take objection to junk mail and tele-marketing. However, it is my view that most individuals are unaware of the rules and regulations and are thus unable to stop their data being used for marketing purposes.
Some unscrupulous companies will flout the rules and there is nothing you can do to stop some unwanted calls or mail, other than make a formal complaint to the ICO, MPS, TPS or Ofcom when it happens.
Some useful links
The small print:
- the information provided based on first-hand knowledge of the industry. However, it is without warranty.
- You cannot reproduce this text in part of whole without first seeking my permission LeicsBobby@gmail.com