The legal test that the Information Commissioner's Office (ICO) must meet before it can justify serving fines on businesses that send unsolicited marketing communications could be lowered, a Government representative has said. Lord Gardiner of Kimble said that the measure could be used to address concerns about nuisance calls. …
== Chocolate Fireguard
Anonymous coward == someone who doesn't obviously have the faintest clue how IG law is drafted in this country
The new law needs to make two major changes to legislation regarding unsolicited calls:
1 - There must be just one body to complain to. At the moment, complaints are split between the ICO and OFCOM (and possibly even the financial regulators too)
2 - Levying fines against the people/companies making the calls is not enough. Many of them are outside UK jurisdiction. If the companies making the calls are outside the UK, then the UK company contracting their services must be fined. I know this isn't perfect as you could use a chain of off-shore companies to hide the trail, but this does raise the bar.
Lastly, the law needs to be enforced, with meaningful punishments. A £10K fine probably isn't going to make much difference to some companies. (I wouldn't be surprised if some of the companies factor in the cost of fines into their business plans.)
Exactly - You are correct!
As you say, just make the UK Based legal entity through which the call is first seen responsible for the fines (how that entity back's out the the risk through it's contracts with it's suppliers is it's problem).
Also TPS needs upgrading so you can request that the call meta data is kept for 24 hours only on incoming calls, allowing you identify which calls are an issue and this will provide information needed to identify the source of the problem.
@ A Non e-mouse - Follow the Trail
Wrote :- "Levying fines against the people/companies making the calls is not enough"
It said making or "instigating". Ought to cover it.
"the UK company contracting their services must be fined. I know this isn't perfect as you could use a chain of off-shore companies to hide the trail"
If someone phones me up trying to get me to change to eg Talk-Talk (or whoever), it seems to me that a "chain of off-shore companies" is irrelevant. You fine Talk-Talk.
PS. I mentionTalk-Talk because they phoned me despite my being on the TPS register. When I pointed this out, and the fact that being a phone company they should damn well what the law is, they had the nerve to "assure" me that they were entitled to phone me because I was a phone user.
Damage and distress
I would add that rather than having to show damage and distress they should be fined per recipient if the company sending the communication did not take adequate measures to try to ensure that they were genuinely entitled to market to that individual.
So if the fine ranged from 10p to £10 per recipient based upon how neglectful the company was, this should help to stem the problem dramatically.
Therefore, unlike a fixed fine, it cannot be thought of as a "business cost" which can be negated by sending even higher numbers of communications.
"1 - There must be just one body to complain to. At the moment, complaints are split between the ICO and OFCOM (and possibly even the financial regulators too)"
3 ways - the ASA gets complaints too.
as for #2, the USA's TCPA makes the advertisers and the people who employ them jointly and severally liable - which is a good thing because most companies won't think twice about just hiring another spamming outfit (or new morph of the same one) but it's a little harder to swallow if they're being held responsible for the actions of their contractors.
As long as there are ways for the insitgating companies to avoid being targetted by the anti-spam hammer, they'll keep doing it (especially outfits like abulance chasers)
Re: @ A Non e-mouse - Follow the Trail
"PS. I mentionTalk-Talk because they phoned me despite my being on the TPS register. When I pointed this out, and the fact that being a phone company they should damn well what the law is, they had the nerve to "assure" me that they were entitled to phone me because I was a phone user."
Responses like this are why I record ALL my phone calls (mobile and landline).
Re: Damage and distress
"I would add that rather than having to show damage and distress they should be fined per recipient if the company sending the communication did not take adequate measures to try to ensure that they were genuinely entitled to market to that individual."
Bollocks. All they need is a statutory damages clause and to allow private action via small claims courts. That's what makes the TCPA laws so effective in the USA. (Triple damages if proved to be wilful - and all "wilfil" needs is "ignoring a TPS entry.) (FWIW if the regulator in the USA steps in it's $11,500 PER CALL, vs the $500/$1500 individuals are able to claim)
Of course that would probably be construed as "anti business" in the UK and stomped on.
Re: Damage and distress
Thanks, for that!
Maybe over in the USA but in the UK if you take someone to Small Claims court you only have a limited subset of claims you can make and nearly all have to be directly related to a loss or cost you have personally suffered. So you could go to court and sue for £5 maybe for the time it took to download an digest the e-mail. However you are never going to be able to claim £500 etc via the small claims system.
In the UK they courts, even if you go to full civil court don't hand out massive punitive damages - apart from a limited few cases such as libel - these have to come as forms of fines which is why it needs to be done through legislation.
But does the ICO really want to do anything?
Just because they could take action doesn't mean they will. I won't be holding my breathe.
Re: But does the ICO really want to do anything?
Except they have been taking action but the law is drafted in such a half arsed way it makes it very difficult for action to be effective.
If you'd actually looked rather than spouting a pavlovian response you'd see that under Chris Graham the ICO has been far more pro-active in taking action that it ever was under his predecessor. Granted more could be done but with the way the law is framed at the moment it makes it hard for him to do so.
Also its quite ironic that the Govt talks about providing more power to the ICO regarding unsolicited marketing while actively working to eviscerate that new EU DP Directive. The changes the Tories want will see far less protection for personal data than we have now, something their moves to improve data sharing for the greater good are already doing.
Re: But does the ICO really want to do anything?
You seem to be of the opinion that the ICO is not a branch of the UK government.
I believe it is a part of the Government whose ties to the Ministry of Justice are kept just loose enough to create a "plausible" deniability of responsibility. All governments have been actively pro-marketeers and anti-consumers since the promotion of spin-doctors and flim-flam merchants to the upper echelons.
I will believe in effective regulation when I see it take effect.
Re: But does the ICO really want to do anything?
Where do I suggest that the ICO is or isn't part of UK government? I make no statement either way.
All I said is the law had been drafted in a half arsed way that makes it difficult to enforce and the actions of the current governemnt in Brussels are doing their best to make DPA/IG law weaker rather than stronger.
Newsflash Vagabondo, the Cabinet Office drafts the laws not the regulator and they have repeatedly ignored ICO requests for more powers or for powers to be fully implemented (custodial sentances for DP offences) but why let the facts ruin a good conspiracy theory.
Still you just go off on your own tangent rather than actually adressing the points I raised.
Lord Gardiner said : " we have to be careful that, in dealing with this issue, we do not harm the direct marketing industry, which is a legitimate industry that provides employment and opportunities in support of our economy."
Pity they did not say that about the engineering industry, shipbuilding, electronics, car making ... I would like to see the direct marketing industry DESTROYED. A "legitimate" industry ? What it does may be legitimate under present legislation; but I thought this was about changing legislation, and that this is a time to decide what should be legitimate or not in future.
And : "Direct marketing can be beneficial for consumers—for example, calls from telecoms or energy companies advising on better deals or tariffs potentially save consumers money"
Does he seriously believe that accurate and unbiased information can be obtained from telephone salesmen?
"Direct marketing can be beneficial for consumers—for example, calls from telecoms or energy companies advising on better deals or tariffs potentially save consumers money"
I don't believe that but maybe it's true so, Lord Gardiner, where's the evidence that these calls offer the cheapest telecoms/energy deals? But even so it should be my choice as to whether I want to receive such calls.
What are Lord Gardiner's social and financial links with representatives of the marketing sector? What is his motivation for taking their side rather that that of the general public who are thouroughly pigged off with these annoying gits - as is evidenced by the very high take up of the false promises of TPS registration (pity it's utterly useless).
I want zero marketing, marketing masquerading as "legitimate opinion polls", "legitimate opinion polls" or any other exceptions. I want to be on a list that says personal calls only with very few exceptions like the bank I use as long as it's for non-sales calls - checking that an unusual purchase is not indicative of card fraud for example.
All calls must include CLI
Telecoms providers shouldn't be charging for providing CLI
Anyone providing a fake CLI should be tracked down and exterminated (well OK, maybe just banged up , certainly not just a fine which can be put down as "one of the overheads of working this way" which they will do if they generate more profit than the cost of the fines).
There should be a landline service equivalent to the mobile dial SPAM (7726) to report the last call (The 7726 service is for unwanted text messages, forward the text to 7726 to report it as spam - that needs extending to dial 7726 to report the last incoming voice call as spam and the same doing for land-lines).
As regards overseas call centres - as soon as I hear a non European accent (usually Indian) I put the phone down.
My experience has been that those calls are at least a strong indication of unwanted marketing, at worst a fraudster (the guys who pretend they're calling from Microsoft to tell you there's a virus on your PC)
I'm not going to accept 100 calls on the off-chance that one of them may be legitimate. If my Bank chooses to outsource to India or to employ people with an Indian accent in UK to make their calls, legitimate or otherwise, that's their problem.
"for example, calls from telecoms or energy companies advising on better deals or tariffs potentially save consumers money"
No they do not. The calls from such companies invariably end up with you spending more money than you did before, as the prosecutions from OFGEM have shown.
Also, fines are not good enough as they are not acting as a deterrent. We need prison sentences and criminal asset recovery as well.
So now lying is legitimate?
After I renewed my car insurance policy, somone from Endsleigh phoned me to "check you understand the policy". After a couple of perfunctory questions on that topic, he proceeded to the real reason for the call, to sell me home insurance. The only reason I'm still with them is other insurers are as bad or worse.
The direct marketing industry provides dead end, minimum wage jobs to people who are desperate for work. That's the only good thing I can say about it.
" Currently an opt-out register exists."
Or, as the marketing 'industry' call it, a list of working numbers.
Sometime in the future ...
Hello I'm phoning you on behalf of insoolayshun. There is no need to hang up as by picking up the hone you automatically endorsed a £10 (or £X if you wish) payment to Dell-Boyz Dodgy Trading Marketing (Direct) company.
We have to make this charge in order to comply with legal regulations. If you hold on to the end of the call before hanging up it will only cost £5 (or £(X * 0.5) if you wish farther)
The ICO is a waste of time
As someone who submits, on average, about three complaints to the ICO a month, I can confirm that they are totally useless. I currently have nine case reviews that I need to escalate to the PHSO because the caseworkers that worked on those case reviews don't know what they're talking about. So basically ICO staff are not really interested, and if they were they often get it wrong and ultimately it's an absolute waste of time.
All they need to do is allow individuals to take companies to the small claims court for contravening the DPA or the PECR. Make it a fixed claim amount for, say, £75 and watch how fast the marketing stops.
Latest PPI scam
They ring you from a landline number and put the phone down.
of course, like most people in Business we call back (as we are a supply company) to get the PPI selling compensation scheme , it's costing us a lot of money and wasted time on our Vodafone bills
Apparently, by us ringing back, it circumvents the regulations as it looks as if we're initiating the call to them.....pity we cant get the info from Vodafone on them calling us, else a good solicitor would soon get them shut down
Re: Latest PPI scam
You can get the info from Vodafone. A simple court request will get that (even a auitably worded lawyer's letter will often get results)
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