Over the years we have seen a decrease in the amount of marketing calls we receive, thanks to email. E-mail is free, easily accessible, you can put more information and you can get really fancy, making it a great marketing tool as well as more cost effective and efficient operationally speaking. However the GDPR and ePrivacy regulations could change all that and have sales people running for the telephone….

 

In this post I will not be considering automated cold calling but only direct voice to voice calls. Below are the definitions as presented in the ePrivacy proposal under Article 4 for clarity.

(f) ‘direct marketing communications’ means any form of advertising, whether written or oral, sent to one or more identified or identifiable end-users of electronic communications services, including the use of automated calling and communication systems with or without human interaction, electronic mail, SMS, etc.;

(g) ‘direct marketing voice-to-voice calls’ means live calls, which do not entail the use of automated calling systems and communication systems;

(h) ‘automated calling and communication systems’ means systems capable of automatically initiating calls to one or more recipients in accordance with instructions set for that system, and transmitting sounds which are not live speech, including calls made using automated calling and communication systems which connect the called person to an individual.

 

Let’s jump in shall we?

Directly into Article 16 previously titled ‘Unsolicited Communication’ has now been renamed to ‘Direct Marketing Communication’ as per the latest revision. As if Article 16 wasn’t already a big enough loop hole the change in wording of the title further softens the perception of the intrusion these nuisance calls present.

The article starts off well in paragraph 1 specifying marketing communications may be sent  through electronic communications to those users who have given their consent.

Paragraph 2, presents the first loop hole. I really have to quote this directly from the regulation.

Where a natural or legal person obtains electronic contact details for electronic mail from its customer, in the context of the sale of a product or a service, in accordance with Regulation (EU) 2016/679, that natural or legal person may use these electronic contact details for direct marketing of its own similar products or services only if customers are clearly and distinctly given the opportunity to object, free of charge and in an easy manner, to such use. The right to object shall be given at the time of collection and each time a message is sent.

So what am I hearing? As soon as I buy a product and enter my details unless I specifically object, the company is now free to send me direct marketing communications? Doesn’t this go against the opt-in concept presented by GDPR and revert back to the opt-out method?

Paragraphs 3 and 4 put the nail in the coffin so to speak ….

 

3. Without prejudice to paragraphs 1 and 2, natural or legal persons using electronic communications services for the purposes of placing direct marketing calls shall:

(a) present the identity of a calling line identification on which they can be contacted; or

(b) present a specific code/or prefix identifying the fact that the call is a marketing call

 

4. Notwithstanding paragraph 1, Member States may provide by law that the placing of direct marketing voice-to-voice calls to end-users who are natural persons shall only be allowed in respect of end-users who are natural persons who have not expressed their objection to receiving those communications.

Note: The struck out words reflect the latest revision issued.

 

What I’m hearing is that, if I buy a toaster and they have my phone number for the purpose of the guarantee, and I never specifically objected to direct marketing, I might be receiving a couple of calls to tell me about their new juicers.

Problem 1: It does not stop the first call from happening but I can always object to receiving further calls or communications as per paragraph 6. No harm no foul.

Problem 2: Let’s just assume that I got the call about the juicer and during the call I informed the company that I would not like to be contacted again. Now prove it. Unless a call is being recorded there is no way to prove that I ever objected. This could potentially open up to abuse.

Problem 3: What really constitutes a direct marketing call? Okay I’m being very sneaky but consider this. The company I bought the toaster from calls me to check whether I’m having any problems with the toaster and reminding me my guarantee is expiring. After that they also tell me that if I’m interested they have these fantastic new juicers and give me the sales pitch. So what is that classified as? A service call or a marketing call?

 

I’ll stop there today, for more questionable articles/clauses stay tuned for next week’s post.

 

References

ePrivacy proposal including revisions – http://data.consilium.europa.eu/doc/document/ST-15333-2017-INIT/en/pdf

Summary of revisions – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_11995_2017_INIT&from=EN

 

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