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UK Telecoms regulations [1998] PLBIRp 29; (1998) 45 Privacy Laws and Business International Report 22

UK to restrict telemarketing and unsolicited faxing

THE SECTORAL DATA PROTECTION DIRECTIVE on telecommunications is being implemented in the UK by a regulation which will especially affect organisations in the telecommunications sector and any organisations using direct marketing or telephone selling.

The Department of Trade and Industry (DTI), in charge of drafting proposals for implementation of the EU Telecommunications Data Protection Directive (97/66/EC), published draft regulations for public consultation at the end of July. The draft regulations take into account the responses to the Government’s previ- ous consultation. The three main areas of the currentconsultation are:

• itemised billing,

• directories

• unsolicited calls and faxes.

Responses to this second consulta- tion were sought by the end of September. The timetable will not allow for implementation by the deadline of 24th October, but is more likely to follow the schedule of the implementation of the general Data Protection Directive which has been delayed, and is now expected to be in force early next year.

This directive on data protection within the telecommunications sector supplements the general data protec- tion directive (PL& B Dec’97 p.2-3). It covers the processing of personal data in publicly available telecommu- nication services in public networks. It is not only transmission systems that fall within the directive’s scope, but also switching equipment used for the provision of the services. The regulations will have a wide ranging effect; they apply not only to those holding licences under the Tele- communications Act, but also to all organisations which use a phoneline. Private networks, such as closed company networks, are not covered.

UNSOLICITED FAXES BANNED

The new draft regulations would pri- marily affect the direct marketing industry. The Directive gives two options for regulating unsolicited marketing calls. Calls could be allowed either with prior consent, or if the subscriber has not registered with a telephone preference service. The UK Government proposes that individuals should be able to opt out from receiving unsolicited direct mar- keting phone calls by registering with a preference service. In the first con- sultation organised earlier this year, the Government received mixed views on how the issue should be solved. The direct marketing industry criticised opt-in as being too restric- tive, whereas consumer organisations would have preferred it.

With regard to unsolicited direct marketing faxes, there may be a ban on sending them without prior consent. Corporate subscribers may also have the option of opting out. Small businesses, in particular, have seen this as an essential requirement.

E-MAIL IS NOT A CALL

The UK Government has taken the view that electronic mail is not a

“call” and sending unsolicited mail via E-mail will, therefore, not be covered. However, Article 4 on secu- rity and Article 11 on directories are likely to apply to Internet service providers. The same applies to Article 5 on confidentiality when it will be implemented by October 2000. The Government plans to consult sepa- rately on Article 5 which has caused some concern to telemarketers. As a general rule, listening, tapping, storage or any kind of interception or surveillance is prohibited in Article 5, unless the consent of individuals using the publicly available telecom- munication service is first obtained.

BILLING DATA FOR MARKETING PURPOSES

Billing data may be processed by a provider of telecommunication services to market its own services, but only if the subscriber has given his consent. The Data Protection Registrar, who will be enforcing the regulations, advises that the consent has to be “informed.” It is not enough that the subscriber is in a contractual situation with the provider. Therefore, on signing a contract, subscribers must be informed by the service provider that they have the power to prohibit the provider from using their personal data for marketing purposes. Consent may be given by telephone.

The draft regulations are available from the DTI. Requests for

the paper, and responses to it can be faxed on +44 (0) 171 215 4161

E-mail: tdpd@ciid.dti.gov.uk