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Legal Obligations

The Telecommunications (Data Protection and Privacy) Regulations

These Regulations came into effect on 1 May 1999 and were replaced on 11th December 2003 by the Privacy and Electronic Communications (EC Directive) Regulations 2003. They are intended to protect people - and in some cases businesses - against receiving unwanted direct marketing telephone calls or faxes.

What are the broad details?

Direct marketing telephone calls: it is unlawful for someone in business (including charities or other voluntary organisations) to make such a call to any Individual if that Individual has either told that business or organisation that he/she does not want to receive such calls or has registered with the Telephone Preference Service that they do not wish to receive such calls from any business or organisation.

Direct marketing faxes: it is unlawful for someone in business (including charities or other voluntary organisations) to send such a fax to anybody, whether a consumer or business, if the recipient has registered with the Fax Preference Service. There is an additional protection for Individuals in that it is also unlawful to send a direct marketing fax to an Individual who has not previously consented to receive it. This is a matter for the sender and recipient to work out between them.

Where a direct marketing call is made the name of the caller must be given and, if requested, his address or freephone number. (In the case of use of fax or automated calling systems the address or freephone number have to be given in any event, in addition to the name of the sender/caller).

Who are Individuals?

Individuals are consumers, sole traders, and (except in Scotland) partnerships.

What are the differences between the Telephone Preference Service (TPS) and the Corporate Telephone Preference Service (CTPS)?

The TPS enables Individuals (consumers, sole traders, and (except in Scotland) partnerships) to register their objection to receiving direct marketing calls with a central service. This means that the TPS file contains consumer telephone numbers as well as some business numbers.

The CTPS includes corporate bodies such as a limited company in the UK, a limited liability partnership in England, Wales and Northern Ireland or any partnership in Scotland. It also includes schools, government departments and agencies, hospitals and other public bodies.

Therefore if you are contacting .business. numbers for the purposes of sales and marketing, you must screen against both the TPS and CTPS files, as the TPS file contains business number also. If you are solely contacting consumers for the purposes of sales and marketing, then you only need to screen against the TPS file.

Who needs to comply with the Regulations?

All those in business (including charities and voluntary organisations) who make direct marketing telephone calls to Individuals, or direct marketing faxes to anybody. Both 'cold' lists and customer lists should be cleaned against the Telephone Preference Service or Fax Preference Service registers before calls are made or faxes sent, to ensure compliance with the Regulations. This is in addition to checking such lists against in-house "do not call" lists. There is an exception to the above and that is where Individuals have already indicated to the calling business or organisation that they do not object to direct marketing telephone calls, or in the case of fax where a business has indicated to another business that they do not object to receiving direct marketing faxes from them.

How often do I need to clean my data?

As frequently as is necessary to ensure that nobody protected by the Regulations, who has registered with either of the registers 28 days or more previously, is contacted.

Who enforces the Regulations?

The Information Commissioner.s Office. The Telephone Preference Service itself will investigate initial complaints made to it by anyone whose registration has not prevented a call or fax, which it should have done, but the Information Commissioner.s Office will determine any action for breach of the Regulations.

The Telephone Preference Service Ltd which administers the Telephone and Fax Preference Service register - is a subsidiary company of the Direct Marketing Association (UK) Ltd which OFCOM has appointed to manage the opt out registers.

The information provided above on the Telecommunications (Data Protection and Privacy) Regulations 1999 ("the regulations") does not purport to be comprehensive and is not intended to constitute legal advice. If you require specific legal advice on the regulations you should consult