6.7 Article 12.2 requires Member States to establish a system under which individual subscribers can protect themselves against unwanted direct marketing calls. Article 12.2 gives Member States a choice between an opt-in scheme, where direct marketing calls are only allowed if the subscriber has given prior consent; and an opt-out scheme - where such calls are not allowed if the subscriber has indicated he does not wish to receive them. We consulted on which route the Regulations should follow.
6.8 Responses to the consultation were mixed. Consumer bodies generally favoured an opt-in system, whilst the telecoms and direct marketing industriesfavoured an opt-out system. Consumers' views were in many cases coloured by experience of the existing, voluntary, opt-out scheme run by industry, which only covers some 70% of direct marketing calls, and which has no statutory backing. Industry responses argued that an opt-in system would place unreasonable restrictions on the direct marketing industry.
6.9 After considerable reflection, the Government is prepared to consider an opt-out system, and regulation 23 is drafted on that basis. The Government considers that with suitable publicity and statutory backing, such a scheme is capable of ensuring a proper level of consumer protection.
6.10 However, the Government wishes to emphasise that should an opt-out scheme not prove to be providing effective protection for consumers, the Government reserves the right to amend the Regulations to strengthen these provisions. This could include introducing an opt-in approach, under which direct marketing calls would only be allowed to be made to consumers who had consented to receiving such calls.
6.11 Under regulation 23(2), no one may make a direct marketing call to an individual subscriber if the subscriber has either previously notified the caller that he does not wish to receive such calls, or if he has put his details on the record of individuals who do not wish to receive direct marketing calls which will be established under the regulation. The fact that a subscriber may have an ongoing contractual relationship with a particular company will not prevent him exercising his rights under regulation 23(2).
6.12 Regulation 23(4)(a) and (6) would require the record to be maintained by the Secretary of State or some other person with whom he has entered into an agreement for this purpose. DTI will be holding discussions with the direct marketing industry about the conditions which any industry-run scheme would need to meet.
6.13 Regulation 23(4)(b) would allow any person wishing to make direct marketing calls to obtain the record in exchange for a fee to be set by the Secretary of State. Under Regulation 23(5), the aggregate fees received must not exceed the costs of maintaining and updating the record, and making it available. Unsolicited direct marketing faxes sent to corporate subscribers
6.14 Article 12.3 requires Member States to take national measures to guarantee the protection of the legitimate interests of corporate subscribers in respect of unsolicited direct marketing calls and faxes. In our consultation earlier in the year, we sought views on whether any of the protections afforded by Articles 12.1 and 12.2 should be extended to corporate subscribers.
6.15 Respondents felt there was no need to provide corporate subscribers with protection from direct marketing calls. In any case, corporate subscribers continue to have remedies available for dealing with unwanted direct marketing calls underthe Telecommunications Act Class Licences (Condition 7 of the Telecommunications Services Licence; Condition 6 of the Self Provision Licence).
6.16 As regards unsolicited direct marketing faxes, however, there were a considerable number of representations - in particular from smaller companies -arguing that corporate subscribers should have the ability to prevent such faxes being sent to them.
6.17 Regulation 22 therefore introduces an opt-out scheme for corporate subscribers in respect of unsolicited direct marketing faxes, along similar lines to the that for individual subscribers in respect of unsolicited direct marketing calls described at paragraphs 6.7 - 6.13 above.
6.18 Under regulation 22(2), no one may send a direct marketing fax to a corporate subscriber if the subscriber has either previously notified the sender that he does not wish to receive such faxes, or if he has put his number on the record of individuals which will be established under this regulation.
6.19 Regulations 22(4)(a) and (6) would require the record to be maintained by the Secretary of State or some other person with whom he has entered into an agreement for the purpose. Again, DTI will be holding discussions with the direct marketing industry about the conditions which any industry-run scheme would need to meet.
6.20 Regulation 22(4)(b) would allow any person wishing to send direct marketing faxes to obtain the record in exchange for a fee to be set by the Secretary of State. Under Regulation 22(5), the aggregate fees received must not exceed the costs of maintaining and updating the record, and making it available. Inclusion of name and address or freephone number in direct marketing faxes and calls
6.21 Regulation 24 requires callers to include a name and address or freephone number as part of all direct marketing faxes and calls.
7.1 Article 4 requires providers of publicly available telecoms services to take appropriate measures to safeguard the security of their services, acting with network providers as necessary. The measures should be appropriate to the risk concerned, taking account of what is technically feasible and the cost of such measures. Service providers are required to inform their subscribers of any particular risk, and of the cost of any remedies.
7.2 Article 4 is implemented by regulation 25. Regulation 25(2) requires network providers to cooperate with service providers in this area.favoured an opt-out system. Consumers' views were in many cases coloured by experience of the existing, voluntary, opt-out scheme run by industry, which only covers some 70% of direct marketing calls, and which has no statutory backing. Industry responses argued that an opt-in system would place unreasonable restrictions on the direct marketing industry.
6.9 After considerable reflection, the Government is prepared to consider an opt-out system, and regulation 23 is drafted on that basis. The Government considers that with suitable publicity and statutory backing, such a scheme is capable of ensuring a proper level of consumer protection.
6.10 However, the Government wishes to emphasise that should an opt-out scheme not prove to be providing effective protection for consumers, the Government reserves the right to amend the Regulations to strengthen these provisions. This could include introducing an opt-in approach, under which direct marketing calls would only be allowed to be made to consumers who had consented to receiving such calls.
6.11 Under regulation 23(2), no one may make a direct marketing call to an individual subscriber if the subscriber has either previously notified the caller that he does not wish to receive such calls, or if he has put his details on the record of individuals who do not wish to receive direct marketing calls which will be established under the regulation. The fact that a subscriber may have an ongoing contractual relationship with a particular company will not prevent him exercising his rights under regulation 23(2).
6.12 Regulation 23(4)(a) and (6) would require the record to be maintained by the Secretary of State or some other person with whom he has entered into an agreement for this purpose. DTI will be holding discussions with the direct marketing industry about the conditions which any industry-run scheme would need to meet.
6.13 Regulation 23(4)(b) would allow any person wishing to make direct marketing calls to obtain the record in exchange for a fee to be set by the Secretary of State. Under Regulation 23(5), the aggregate fees received must not exceed the costs of maintaining and updating the record, and making it available. Unsolicited direct marketing faxes sent to corporate subscribers
6.14 Article 12.3 requires Member States to take national measures to guarantee the protection of the legitimate interests of corporate subscribers in respect of unsolicited direct marketing calls and faxes. In our consultation earlier in the year, we sought views on whether any of the protections afforded by Articles 12.1 and 12.2 should be extended to corporate subscribers.
6.15 Respondents felt there was no need to provide corporate subscribers with protection from direct marketing calls. In any case, corporate subscribers continue to have remedies available for dealing with unwanted direct marketing calls underthe Telecommunications Act Class Licences (Condition 7 of the Telecommunications Services Licence; Condition 6 of the Self Provision Licence).
6.16 As regards unsolicited direct marketing faxes, however, there were a considerable number of representations - in particular from smaller companies -arguing that corporate subscribers should have the ability to prevent such faxes being sent to them.
6.17 Regulation 22 therefore introduces an opt-out scheme for corporate subscribers in respect of unsolicited direct marketing faxes, along similar lines to the that for individual subscribers in respect of unsolicited direct marketing calls described at paragraphs 6.7 - 6.13 above.
6.18 Under regulation 22(2), no one may send a direct marketing fax to a corporate subscriber if the subscriber has either previously notified the sender that he does not wish to receive such faxes, or if he has put his number on the record of individuals which will be established under this regulation.
6.19 Regulations 22(4)(a) and (6) would require the record to be maintained by the Secretary of State or some other person with whom he has entered into an agreement for the purpose. Again, DTI will be holding discussions with the direct marketing industry about the conditions which any industry-run scheme would need to meet.
6.20 Regulation 22(4)(b) would allow any person wishing to send direct marketing faxes to obtain the record in exchange for a fee to be set by the Secretary of State. Under Regulation 22(5), the aggregate fees received must not exceed the costs of maintaining and updating the record, and making it available. Inclusion of name and address or freephone number in direct marketing faxes and calls
6.21 Regulation 24 requires callers to include a name and address or freephone number as part of all direct marketing faxes and calls.
7.1 Article 4 requires providers of publicly available telecoms services to take appropriate measures to safeguard the security of their services, acting with network providers as necessary. The measures should be appropriate to the risk concerned, taking account of what is technically feasible and the cost of such measures. Service providers are required to inform their subscribers of any particular risk, and of the cost of any remedies.
7.2 Article 4 is implemented by regulation 25. Regulation 25(2) requires network providers to cooperate with service providers in this area.the Telecommunications Act Class Licences (Condition 7 of the Telecommunications Services Licence; Condition 6 of the Self Provision Licence).
6.16 As regards unsolicited direct marketing faxes, however, there were a considerable number of representations - in particular from smaller companies -arguing that corporate subscribers should have the ability to prevent such faxes being sent to them.
6.17 Regulation 22 therefore introduces an opt-out scheme for corporate subscribers in respect of unsolicited direct marketing faxes, along similar lines to the that for individual subscribers in respect of unsolicited direct marketing calls described at paragraphs 6.7 - 6.13 above.
6.18 Under regulation 22(2), no one may send a direct marketing fax to a corporate subscriber if the subscriber has either previously notified the sender that he does not wish to receive such faxes, or if he has put his number on the record of individuals which will be established under this regulation.
6.19 Regulations 22(4)(a) and (6) would require the record to be maintained by the Secretary of State or some other person with whom he has entered into an agreement for the purpose. Again, DTI will be holding discussions with the direct marketing industry about the conditions which any industry-run scheme would need to meet.
6.20 Regulation 22(4)(b) would allow any person wishing to send direct marketing faxes to obtain the record in exchange for a fee to be set by the Secretary of State. Under Regulation 22(5), the aggregate fees received must not exceed the costs of maintaining and updating the record, and making it available. Inclusion of name and address or freephone number in direct marketing faxes and calls
6.21 Regulation 24 requires callers to include a name and address or freephone number as part of all direct marketing faxes and calls.
7.1 Article 4 requires providers of publicly available telecoms services to take appropriate measures to safeguard the security of their services, acting with network providers as necessary. The measures should be appropriate to the risk concerned, taking account of what is technically feasible and the cost of such measures. Service providers are required to inform their subscribers of any particular risk, and of the cost of any remedies.
7.2 Article 4 is implemented by regulation 25. Regulation 25(2) requires network providers to cooperate with service providers in this area.
The full version of this document and the draft regulations themselves are available in pdf format from the DTI site.
Comments on the above should be sent to by 30 September 1998 to:
Mrs Jane Duck
Department of Trade and Industry
Bay 202
151 Buckingham Palace Road
London SW1W 9SS
They may also be faxed on 0171 215 4161, or sent by e-mail to: tdpd@ciid.dti.gov.uk.
This site's submission on the first consultation, which has now closed, can also be read here.
The DTI is now predicting that the new laws will come into force in January 1999.
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