Nuisance Calls: Cracking the Legal Whip

The Government is planning to make it easier to fine individuals and firms that hound members of the public with nuisance telephone calls.

We all intensely dislike nuisance telephone calls, which often inform us that we are ‘entitled’ to compensation or which are of another nonsensical and irritating nature. Whatever their exact nature, the vast majority of such calls are marketing calls.

From April-November 2013 the Information Commissioner’s Office received 120,310 complaints about ‘unsolicited marketing calls’.

Limited fines can be imposed on nuisance callers in certain circumstances. The Government is now considering whether to make it easier to impose harsher fines.

What is the current law? And what is being proposed?

Unsolicited Calls and the Telephone Preference Service

Under regulation 26 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 a register should be kept of individuals who have notified OFCOM (the communications regulator) that they do not wish to receive direct unsolicited marketing calls. The register is known as the Telephone Preference Service (TPS).

Regulation 21 of the 2003 Regulations prohibits all persons from making unsolicited marketing calls to those telephone numbers that are registered with the TPS, or from allowing their telephone line to be used for making such calls to numbers registered with the TPS.  Similarly, regulation 21 also prohibits unsolicited marketing calls if an individual has previously notified an unsolicited caller that calls should not be made to that line. There are two exceptions in regulation 21. Firstly, unsolicited calls may be made to numbers registered with the TPS if they have been listed on the register for less than 28 days. Secondly, unsolicited marketing calls may be made if an individual has indicated that they do not object to unsolicited telephone calls for the time being.

What happens where the Regulations are breached? Firstly, where an individual suffers damage by reason of a breach of the Regulations, they may bring a claim against the person who breached the Regulations under regulation 30 of the Regulations. Secondly, where the Regulations are breached, the Information Commissioner can impose monetary penalties on the wrongdoer under regulation 31 (and Schedule 1) of the 2003 Regulations, which imports the financial penalties in section 55A of the Data Protection Act 1998 into the Regulations (please note that the links to regulation 31 and Schedule 1 do not reflect the up to date text of the provisions). Under section 55A, financial penalties may only be imposed where breach of the rules is likely to result in ‘substantial damage’ or ‘substantial distress’ and may not exceed the ‘prescribed amount’. Regulation 2 of the Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 provides the prescribed amount is £500,000.

The Proposals

Despite the rules, nuisance calls are still a major problem. The Government is therefore consulting on whether to lower the substantial damage/distress threshold and whether to increase the maximum fine to 20% of a company’s financial turnover. This would make it easier to impose fines that would be more of a punishment and more of a deterrent.

Comment

These proposals are to be welcomed. Everyone has a right to privacy in their own homes. It is to be hoped the new rules are implemented swiftly.

What are your thoughts?