Hot water for cold callers

The Privacy and Electronic Communications Regulations 2003 govern direct marketing by telephone, fax and email. Telephone calls include person-to-person calls and those made by automated calling systems.

Section 11 of the Data Protection Act 1998 defines direct marketing as "the communication (by whatever means) of any marketing materials that is directed to particular individuals."

The Information Commissioner's Office interprets such direct marketing as the promotion of an organisation's aims or ideals, for example, a political party's campaigning activity, as well as offering goods and services for sale.

In practice, there are two main changes. From 11 December 2003, corporate subscribers may opt out of receiving calls by asking the caller to cease making further marketing calls and, from 25 June 2004, corporate subscribers may register their numbers on the Telephone Preference Service, a list of telephone numbers where the subscriber has objected to receiving unsolicited marketing calls.

Hence, if a subscriber instructs your company to stop making marketing calls to them, you must comply. In addition, you can not make any unsolicited calls to any TPS number.

When making calls, you must identify yourself - by giving out your company's name, address and telephone number. If you subcontract your marketing to another company, that subcontractor must identify your company as the instigator of any marketing calls. Indeed, your company is responsible for the subcontractor's compliance with all of the regulations' provisions.

As for contact lists, unless you are certain they are all clients who regularly buy your goods or services or would be happy to hear from you, you should check these against the TPS. If you call a TPS number without being invited to do so you will breach the regulations and could be penalised.

You can, however, call TPS numbers if you are invited to do so.

All TPS numbers must be 'suppressed'. This means keeping a list of numbers not to call, rather than simply deleting them from your database. This will avoid mistakes and penalties in the future.

Gary Meggitt, Consultant, Fishburns Solicitors.