Cold Calling and the Law (27/02/2019)
What is Cold Calling and is it Legal?
A cold call is an unsolicited telephone call, visit or other communication, usually on the part of a business seeking to attract new customers.
Cold calling is not illegal per se. However, the Privacy and Electronic Communications (EC Directive) Regulations 2003 imposes restrictions on marketing via cold calls, and unsolicited texts, emails and faxes. The 2003 Regulations require companies to obtain an individual’s consent before sending marketing communications to them.
Different rules apply to different types of communication, and the rules are generally stricter for marketing to individuals than for marketing to companies. We focus here on direct marketing aimed at individuals.
When is Cold Calling Illegal?
Use of Automated Calling Systems
An automated calling system automatically initiates a sequence of calls to more than one destination, and transmits sounds which are not live speech, and targeted at people at the other end. The 2003 Regulations prohibit the use of such automated communications for direct marketing purposes.
However, if a subscriber has given their explicit consent to a company to send them such communications, it is not illegal for the company to make automated calls to them. However, where the use of automated calling systems is permitted, the caller is required to provide their name and address, or free phone number. Their phone number must also be clearly displayed to the recipient of the call.
Use of Fax Machines
The 2003 Regulations prohibit a company from sending unsolicited marketing faxes to individuals, including sole traders, without their prior permission to receive marketing faxes from the company concerned. Faxes can, however, be sent to a company which has not registered its fax number with the Fax Preference Service Register (see below). The sender of the fax must display their name and contact address or free phone number.
A company will not be treated as having contravened the Regulations where the fax number has been listed on the Fax Preference Service Register for less than 28 days when the fax was sent.
Use of Unsolicited Calls
It is not illegal for a company to make a ‘live’ cold call for general marketing purposes, subject to the following exceptions. The 2003 Regulations prohibits the use of live cold calls where:
- the individual has made it clear they do not wish to receive such calls; or
- the recipient’s number is listed in the Telephone Preference Service Register or the Corporate Telephone Preference Service Register (see below).
A person or company will not be deemed to have contravened the Regulations where the phone number has been listed with the Telephone Preference Service Register or the Corporate Telephone Preference Service Register for less than 28 days when the call is made.
Where cold calling is legal, the caller is required to provide their name and address, or a free telephone number.
Use of Unsolicited Emails
The 2003 Regulations 2003 prohibits companies from sending unsolicited marketing emails to individuals except where:
- the recipient has provided express consent; or
- the recipient is an existing customer who has previously bought (or negotiated to buy) a similar product or service, and the company provided a simple means to opt out both when the company first collected their details and in every message it has sent.
Where it is legal, the sender is prohibited from disguising or concealing their identity; and must provide a valid address to which the recipient can request such communications must stop.
Note that these rules apply to all digital marketing, such as texts, picture messages, video messages, voicemails, and direct messages via social media. So if you receive an unsolicited direct marketing message via social media, the company behind it has broken the law.
In addition to the 2003 Regulations, individuals can list their number with various central registers showing their wish not to receive marketing calls or faxes. The Telephone Preference Service and the Fax Preference Service were created under the Telecommunications (Data Protection and Privacy) Regulations 1999 – legislation which was replaced by the 2003 regulations. The registers are kept and maintained by OFCOM.
These ‘preference’ services are:
The Telephone Preference Service
The Telephone Preference Service (TPS) is a central opt-out register where individuals, including sole traders, can register their wish not to receive unsolicited sales and marketing telephone calls. Companies are banned from contacting telephone numbers registered with the TPS.
The Fax Preference Service
It is unlawful to send an individual an unsolicited sales and marketing fax without permission. The Fax Preference Service is a central opt-out register for businesses who can register their wish not to receive such faxes. Individuals can also register their fax number with the FPS.
The Corporate Telephone Preference Service
The Corporate Telephone Preference Service is a central opt-out register for corporate subscribers. A corporate subscriber includes UK limited companies, limited liability partnerships in England, Wales and Northern Ireland, or any partnership in Scotland; schools, government departments and agencies, hospitals, PLCs and other public bodies.
Please note that registration takes 28 days to be effective.